Standing for the structural constitution

Virginia Law Review

Volumn 99, Issue 7, 2013, Pages 1435-1524

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84892735983     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (455)

1. Warth v. Seldin, 422 U. S. 490, 499 (1975);
2. see also Horne v. Flores, 129 S. Ct. 2579, 2592 (2009) ("Here, as in all standing inquiries, the critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction. " (internal quotation marks and emphasis omitted));
3. William A. Fletcher, The Structure of Standing, 98 Yale L. J. 221, 222 (1988) ("[Standing] ensur[es] that the people most directly concerned are able to litigate the questions at issue." (emphasis added)).
4. Marbury v. Madison, 5 U. S. (1 Cranch) 137, 170 (1803) (punctuation omitted). Chief Justice Marshall distinguished the vindication of individual rights from inquiry into "how the executive, or executive officers, perform duties in which they have a discretion. " Id.
5. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3154-56 (2010) (invalidating dual for-cause limitations on the removal of Public Company Accounting Oversight Board members);
6. Clinton v. City of New York, 524 U. S. 417, 436-49 (1998) (invalidating line-item veto);
7. Bowsher v. Synar, 478 U. S. 714, 732-34 (1986) (invalidating direct congressional control of spending);
8. INS v. Chadha, 462 U. S. 919, 951-59 (1983) (invalidating legislative veto).
9. See, e.g., Printz v. United States, 521 U. S. 898, 929-30 (1997);
10. New York v. United States, 505 U. S. 144, 168-69 (1992).
11. Duke Power Co. v. Carolina Envtl. Study Grp., 438 U. S. 59, 80 (1978).
12. Bond v. United States, 131 S. Ct. 2355, 2363, 2366-67 (2011).
13. Bond was handed down on June 16, 2011 along with four other decisions. See Davis v. United States, 131 S. Ct. 2419 (2011);
14. J. D. B. v. North Carolina, 131 S. Ct. 2394 (2011);
15. Tapia v. United States, 131 S. Ct. 2382 (2011);
16. Smith v. Bayer Corp., 131 S. Ct. 2368 (2011). It arrived in the term's penultimate week-the dog days insofar as landmark decisions go.
17. 131 S. Ct. at 2364.
18. An exception is a largely descriptive piece by Scott G. Thompson & Christopher Klimmek, Tenth Amendment Challenges After Bond v. United States, 46 U. S. F. L. Rev. 995, 995-96 (2012).
19. See, e.g., Hammer v. Dagenhart, 247 U. S. 251, 273 (1918) (invalidating a federal statute that prohibited the interstate transportation of goods produced in factories that employed children);
20. Minnesota v. Barber, 136 U. S. 313, 317-29 (1890) (habeas action striking down on Commerce Clause grounds a law that required all meats sold in the state to be inspected before being sold);
21. In re Coy, 127 U. S. 731, 758 (1888) (considering the constitutionality of a statute under which defendant had been charged).
22. It is arguably possible to go back further to find cases enforcing the structural constitution at the behest of individuals. See, e.g., Worcester v. Georgia, 31 U. S. (6 Pet.) 515, 596 (1832) (invalidating a Georgia law requiring a license to live on a reservation as a violation of the exclusive federal power to regulate commerce with Indian tribes);
23. Brown v. Maryland, 25 U. S. (12 Wheat.) 419, 436-37 (1827) (invalidating a state statute imposing a license tax for the privilege of selling imported goods under the Commerce Clause and Article I, § 10). The claim advanced in this Article, for obvious reasons, does not turn on historical practice-which, I want to emphasize, squarely cuts in the other direction. Note, however, that Coy and Barber concern habeas proceedings, where the scope of cognizable legal error is a function of scope of the common law writ, which might encompass structural constitutional questions.
24. See Ex parte Bollman, 8 U. S. (4 Cranch) 75, 93-94 (1807) (Marshall, C. J.) ("[F]or the meaning of the term habeas corpus, resort may unquestionably be had to the common law....").
25. F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 276 (2008).
26. In other pieces, I have raised questions about the analytic coherence of judicially created doctrine to enforce the structural constitution. See, e.g., Aziz Z. Huq, Does the Logic of Collective Action Explain Federalism Doctrine?, 66 Stan. L. Rev. (forthcoming 2014).
27. Others have raised concerns about the lack of a common baseline or unit of analysis in thinking about the separation of powers. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1194-97 (2000) ("We do not know what 'balance' means, and we do not know how it is achieved or maintained.");
28. accord Eric A. Posner, Balance-of-Powers Arguments and the Structural Constitution 1 (Univ. of Chi. Inst. for Law & Econ., Working Paper No. 622, 2012), available at http://ssrn. com/abstract=2178725. Even a reader who views the balancing aspirations of structural constitutionalism as infeasible or otherwise beyond reach should nonetheless perceive that others will continue to make structural arguments both inside and outside the courts for many years to come. Such structural constitutionalism skeptics might see value in responding to these claims on their own doctrinal terms, notwithstanding their underlying analytic weaknesses, and might want to view this Article with a corresponding suspension of disbelief.
29. See ASARCO Inc. v. Kadish, 490 U. S. 605, 619 (1989) (distinguishing prudential and constitutional standing).
30. Daniel A. Farber, Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, 121 Yale L. J. Online 121, 122 (2011);
31. Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B. U. L. Rev. 301, 304 (2002) ("Standing cases, taken as a whole, reveal inadequate patterns of decision-making.").
32. For a more nuanced and cautious assessment based on an empirical study of taxpayer standing cases, see Nancy C. Staudt, Modeling Standing, 79 N. Y. U. L. Rev. 612, 615-18 (2004) (noting the "common" view that "standing doctrine is so completely incoherent that judges have no choice but to resort to their own viewpoints when determining who has the right to be in court", but rejecting this view where judges have clear guiding precedent).
33. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2608-20 (2011) (finding that a bankruptcy judge's power to enter final judgment on a state law counterclaim violated Article III).
34. An important body of scholarship takes the more extreme position that courts should never pass on questions of structural constitutionalism. See, e.g., Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court 263 (1980);
35. see also John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1944 (2011) (arguing that "the Constitution adopts no freestanding principle of separation of powers" for courts to enforce (emphasis omitted)). My argument proceeds along different grounds, and is neither an alternative to nor inconsistent with the position adopted by Professors Choper and Manning.
36. My argument about standing, however, relies on the "injury-in- fact" rule of Article III justiciability, which only came into force in 1970. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U. S. 150, 152-53 (1970). Before that date, there was no doctrinal tension of the kind identified here, and it would be somewhat anachronistic to criticize the pre-1970 Court.
37. See, e.g., Daryl J. Levinson, Rights and Votes, 121 Yale L. J. 1286, 1288 (2012) (arguing that "rights and votes have been viewed as functionally similar in this way in a wide array of constitutional and political contexts");
38. accord Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132-33 (1991);
39. Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1677 (2012).
40. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in Jack N. Rakove, Declaring Rights: A Brief History with Documents 160, 161 (1998).
41. Madison used the same phrase elsewhere to refer to structural constitutionalism. See The Federalist No. 48, at 274 (James Madison) (E. H. Scott ed., Chicago, Scott, Foresman & Co. 1898).
42. See, e.g., Myers v. United States, 272 U. S. 52, 116, 176 (1926) (invalidating statutory constraints on the President's removal power respecting a first-class postmaster);
43. see also Wiener v. United States, 357 U. S. 349, 356 (1958) (finding limits to the President's power to remove members of the War Claims Commission implicit in the preclusion of the President from influencing the Commission's decisions with respect to particular claims);
44. Humphrey's Ex'r v. United States, 295 U. S. 602, 627-28 (1935) (endorsing statutory limits on the President's authority to remove members of the Federal Trade Commission).
45. See, e.g., Comm. on Judiciary, U. S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 92-93 (D. D. C. 2008);
46. see also Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715, 735-42 (2012) (describing congressional contempt authority).
47. Individual legislators also have standing to seek relief based on impermissible exclusion from a chamber, see Powell v. McCormack, 395 U. S. 486, 489 (1969)
48. or alleged unconstitutional dilution of voting power, see Michel v. Anderson, 14 F.3d 623, 625-26, 632 (D. C. Cir. 1994) (holding that plaintiff legislators had standing, but rejecting claim on the merits).
49. Printz v. United States, 521 U. S. 898, 929-30 (1997);
50. New York v. United States, 505 U. S. 144, 168 (1992).
51. See Seminole Tribe v. Florida, 517 U. S. 44, 54, 72-73 (1996) (disallowing ouster of state sovereign immunity pursuant to Article I);
52. see also Alden v. Maine, 527 U. S. 706, 712 (1999) (extending state sovereign immunity to state court proceedings).
53. See, e.g., Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011) (concluding that absent an "unequivocal expression of state consent" the phrase "appropriate relief" in the 2000 Religious Land Use and Institutionalized Persons Act could not be construed to permit money damages).
54. The interests protected by Article III might be vindicated in the context of litigation filed by an individual judge. The Court to date has resisted invitations to develop that sort of case law. See Nixon v. United States, 506 U. S. 224, 228-35 (1993) (holding that the judiciary may not review the procedures used by Congress to impeach judges due to the political question doctrine).
55. 130 S. Ct. 3138 (2010).
56. Hence, in INS v. Chadha, the Court invalidated the line-item veto at the behest of a noncitizen litigant in an immigration proceeding. 462 U. S. 919, 930-31, 959 (1983).
57. In Clinton v. City of New York, the Court allowed recipients of federal spending to challenge President Clinton's use of a line-item veto as an infringement on Congress's lawmaking authority. 524 U. S. 417, 421 (1998).
58. 29 U. S. C. §§ 151-69 (2006).
59. Noel Canning v. NLRB, 705 F.3d 490, 499 (D. C. Cir. 2013) (identifying U. S. Const. art II, § 2, cl. 3 as basis of challenge)
60. cert. granted, 133 S. Ct. 2861 (2013).
61. Id. at 497 (relying on language contained in 29 U. S. C. § 160 (e) (2012)).
62. Readers familiar with the federal courts approach to federal habeas corpus review under 28 U. S. C. § 2254 (2012) should be especially struck by this claim: In that domain, the constitutional character of a flaw in the underlying process provides no additional justification at all for judicial review. To the contrary, rules such as procedural default and abuse of the writ routinely preclude the federal court adjudication of alleged constitutional flaws in anterior process. The Noel Canning court gave no justification for why review of agency action should be so differently organized.
63. Noel Canning, 705 F.3d at 499-512.
64. The Administrative Procedure Act, 5 U. S. C. § 702 (2006) ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.").
65. Webster v. Doe, 486 U. S. 592, 603 (1988) (holding that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear... to avoid the 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim" (citations omitted)).
66. See, e.g., Hinck v. United States, 550 U. S. 501, 504 (2007)
67. (noting exception for decisions "committed to agency discretion by law" under 5 U. S. C. § 701 (a) (2)).
68. Compare Lujan v. Defenders of Wildlife, 504 U. S. 555, 576 (1992) ("Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch...."), with id. at 580 (Kennedy, J., concurring) ("Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.").
69. See also Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009) (describing the tripartite Lujan test as a "hard floor").
70. For example, the scope of constitutionally mandated judicial review differs according to whether the APA or habeas is the vehicle for challenging agency action. In the former case, there is no constitutional problem with outcome-determinative deference to executive branch determinations of questions of law in the judicial review of agency action. See, e.g., Chevron U. S. A. v. Natural Res. Def. Council, 467 U. S. 837, 842-43 (1984);
71. see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 969-70 (1992) (describing sweeping consequences of varying the degree of judicial deference). In the latter case, judicial review must extend to all questions of law by dint of the Suspension Clause.
72. See INS v. St. Cyr, 533 U. S. 289, 301-05 (2001) (suggesting that the Suspension Clause mandates that the writ permit judicial decisions on any "pure questions of law" implicated by a detention). The interaction of the Suspension Clause with the scope of legal review raises complex questions that are beyond the scope of this Article. My tentative view, however, is that habeas jurisdiction outside the postconviction arena entails challenges to the absence of legal authority, but would not permit the full gamut of challenges on Article I or Article II grounds.
73. See, e.g., Gonzales v. Raich, 545 U. S. 1, 15-17 (2005);
74. United States v. Morrison, 529 U. S. 598, 613 (2000);
75. United States v. Lopez, 514 U. S. 549, 552 (1995).
76. For an overview of how these cases fit within a larger trajectory of Commerce Clause jurisprudence, see Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. Chi. L. Rev. 575, 589-96 (2013).
77. See, e.g., U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 784-85, 838 (1995). The individual plaintiff in Thornton, a member of the League of Woman Voters, challenged a state constitutional amendment on the ground that it violated Article I of the U. S. Constitution. Id. at 784-85.
78. 132 S. Ct. 2566, 2580 (2012) (listing plaintiffs). At least with respect to the Commerce Clause analysis, the various opinions in NFIB evince little attention to the difference between individual and official institutional plaintiffs.
79. 18 U. S. C. § 922 (q) (Supp. V 1988) (amended 2012).
80. Lopez, 514 U. S. at 551.
81. 529 U. S. at 603-04 (discussing initial civil action).
82. Cf. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 414-17 (2012) (offering an account and a partial critique of the use of historical gloss).
83. See, e.g., U. S. Const. amend. I ("Congress shall make no law....").
84. See, e.g., U. S. Const. art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion....").
85. This has led some commentators to query whether such structural principles should be given legal force. See John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2037-47 (2009);
86. The Federalist No. 84, at 469 (Alexander Hamilton) (E. H. Scott ed., Chicago, Scott, Foresman & Co. 1898). Hamilton also lists the rights contained in the original Constitution- and pointedly does not list either federalism or the separation of powers. Id. at 467-68. There is rich irony in the fact that Hamilton would be the progenitor of perhaps the most aggressive readings of Article I in the early Republic-readings that made his Federalist 84 claims wholly implausible. That irony, however, does not impinge the point that the original public meaning of the 1787 Constitution, as reflected by Publius, did not attach rights to structural provisions.
87. Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 540 (1969) (second alteration in original).
88. The Federalist No. 48, supra note 22, at 274.
89. 514 U. S. at 557
90. (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)).
91. Morrison, 529 U. S. at 616 n. 7 (emphasis added).
92. See 18 U. S. C. § 922 (q) (2) (A) (2012) ("It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.").
93. Anthony J. Bellia, Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 781 (2004) (emphasis omitted).
94. Compare Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U. S. 388, 397 (1971) (endorsing implied cause of action under the Fourth Amendment)
95. with Bush v. Lucas, 462 U. S. 367, 368 (1983) (finding no implied cause of action for retaliation claim under the First Amendment).
96. Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 4.
97. accord Henry P. Monaghan, Third Party Standing, 84 Colum. L. Rev. 277, 283 (1984) [hereinafter Monaghan, Third Party Standing] ("Any litigant has the right to make a facial challenge to the constitutional sufficiency of the rule actually invoked against him [or her], without regard to whether his [or her] own conduct could validly have been regulated by a differently formulated rule." (footnote omitted));
98. see also Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1331-32 (2000) (endorsing the "valid rule" formulation).
99. Monaghan, Third Party Standing, supra note 70, at 283.
100. This is a consequence of the enrolled bill doctrine. See Pub. Citizen v. U. S. Dist. Court for D. C., 486 F.3d 1342, 1351 (D. C. Cir. 2007) (noting that "the Courts of Appeals have consistently" barred challenge to federal laws based on the claim that different versions of the law passed the two Houses);
101. OneSimpleLoan v. U. S. Sec'y of Educ., 496 F.3d 197, 203 (2d Cir. 2007) (finding that the Supreme Court has a longstanding tradition of denying standing to plaintiffs who challenge a federal law by arguing that the text of the final law differs from the text of the enrolled bill).
102. United States v. Munoz-Flores, 495 U. S. 385, 394 (1990).
103. Cf. Tex. Ass'n of Concerned Taxpayers v. United States, 772 F.2d 163, 166-67 (5th Cir. 1985) (holding that the meaning of "raising revenue" within the Origination Clause was a nonjusticiable political question left to Congress to define).
104. See U. S. Const. art. I, § 6, cl. 2 ("No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased [sic] during such time.").
105. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 209, 217 (1974) (denying standing in a challenge to the eligibility of members of Congress to hold commissions in the Armed Forces Reserves during their continuance in office).
106. Mark Tushnet, Taking the Constitution Away from the Courts 51 (1999).
107. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3147 (2010);
108. Morrison v. Olson, 487 U. S. 654, 669-70 (1988).
109. Further, to the extent that the government can act before a court might intervene and then resist any ex post damages award, it is not clear that the valid rule has any meaningful role to play. See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1365 (Fed. Cir. 2004) (denying damages to plaintiffs allegedly harmed by U. S. military action based on political question grounds).
110. Henry P. Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup. Ct. Rev. 195, 211 ("I do not think that the Supreme Court can invoke harmless error principles to sustain the imposition of sanctions when the... state court has itself proceeded on the basis of an invalid rule.").
111. Brecht v. Abrahamson, 507 U. S. 619, 637-38 (1993) (requiring that the state show that a constitutional error did not substantially influence the jury).
112. John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L. J. 87, 91 (2000).
113. Nat'l Endowment for the Arts v. Finley, 524 U. S. 569, 580 (1998)
114. (quoting Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973));
115. accord United States v. Salerno, 481 U. S. 739, 745 (1987);
116. United States v. Raines, 362 U. S. 17, 20-22 (1960);
117. Yazoo & Miss. Valley R. R. v. Jackson Vinegar Co., 226 U. S. 217, 219-20 (1912).
118. Salerno, 481 U. S. at 745.
119. Ayotte v. Planned Parenthood of N. New England, 546 U. S. 320, 328-29 (2006) (citations omitted).
120. Gillian E. Metzger, Facial Challenges and Federalism, 105 Colum. L. Rev. 873, 877 (2005) ("What really distinguishes a facial challenge is not its breadth, but that it involves an attack on the general rule embodied in a statute."). Rejecting traditional models of severity, Professor Kevin Walsh also finds historical support for the idea that courts should "not... infer invalidity beyond unconstitutionality."
121. Kevin C. Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 743 (2010). Professors Fallon, Metzger, and Walsh diverge in how they frame the analysis, but are united in their respect for what I have called the light footprint principle.
122. Morrison, 529 U. S. at 619 (stating that "the Commerce Clause does not provide Congress with authority to enact § 13981");
123. Lopez, 514 U. S. at 559 (analyzing statutory provision as a unitary whole, not as severable application);
124. See, e.g., NFIB, 132 S. Ct. at 2590 (analyzing the "individual mandate's regulation of the uninsured as a class").
125. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 565-66 (6th Cir. 2011) (Sutton, J., concurring in part)
126. abrogated by NFIB, 132 S. Ct. 2566.
127. Moreover, it is almost never clear whether or when a law must be treated as a unitary whole as opposed to a series of separable subrules. Cf. Fallon, supra note 70, at 1331 (using terminology of "subrules"). The prevailing approach to severability turns on legislative intent, see Alaska Airlines v. Brock, 480 U. S. 678, 686(1987), and so laws typically lack natural "joints" that can be employed to separate out subrules or separate families of applications.
128. Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011)
129. (quoting Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009)).
130. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-61 (1992) (citations and internal quotation marks omitted).
131. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 11 (2004)
132. (quoting Allen v. Wright, 468 U. S. 737, 751 (1984)).
133. Prudential standing rules can be overriden by Congress. FEC v. Akins, 524 U. S. 11, 20 (1998).
134. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)
135. (quoting Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U. S. 150, 153 (1970));
136. see also Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U. S. 479, 488 (1998) (explaining that the zone-of-interests test is nothing more than a requirement of "prudential standing" under the APA).
137. Sprint Commc'ns Co. v. APCC Servs., 554 U. S. 269, 290 (2008);
138. accord Sec'y of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984) (stating that a plaintiff ordinarily "'cannot rest his claim to relief on the legal rights or interests of third parties'"
139. (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)));
140. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U. S. 252, 263 (1977) ("In the ordinary case, a party is denied standing to assert the rights of third persons.").
141. See United States v. Richardson, 418 U. S. 166, 174 (1974) (Stewart, J., concurring) ("[A] taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.'"
142. (quoting Flast v. Cohen, 392 U. S. 83, 114 (1968) (internal quotation marks omitted))).
143. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 343 (2006)
144. (quoting Frothingham v. Mellon, 262 U. S. 447, 487 (1923));
145. see also Golden v. Zwickler, 394 U. S. 103, 109-10 (1969) (stating that a general interest in the constitutionality of law is not an actual controversy). Elsewhere, however, the Court has suggested that a "harm [can be] concrete", though "widely shared" provided that it is not "abstract and indefinite."
146. Akins, 524 U. S. at 23-24. The Akins majority opinion sparked a sharp dissent from Justice Scalia, who emphasized that the generalized grievance bar arises not only when harms are widely shared, but also " undifferentiated", in that "the harm caused to" the litigant "is precisely the same as the harm caused to everyone else."
147. Cf. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries", and Article III, 91 Mich. L. Rev. 163, 183-93 (1992) (critiquing persuasively the concept of injury in fact).
148. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1455-56 (1988).
149. But see Daniel E. Ho & Erica L. Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006, 62 Stan. L. Rev. 591, 595-96 (2010) (presenting a more nuanced story to the effect that standing initially had crossideological support, which broke down in the 1920s);
150. Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 691-92 (2004) (compiling evidence of eighteenth-century analogs to standing).
151. Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U. S. 118, 137 (1939);
152. Alexander Sprunt & Son, Inc. v. United States, 281 U. S. 249, 256-57 (1930).
153. FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 476-77 (1940)
154. (discussing 47 U. S. C. § 402 (b) (2) (1940)).
155. 397 U. S. 150, 152 (1970);
156. accord Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131, 1161 (2009);
157. Justice Kennedy recently claimed (without support) that the injury requirement derived from "the English legal tradition. " Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1441 (2011).
158. Longstanding scholarship demonstrates this claim to be unfounded. See Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1274 (1961);
159. But see Steel Co. v. Citizens for a Better Env't, 523 U. S. 83, 103 n. 5 (1998) (arguing that doctrinal standing has a longer historical pedigree).
160. For example, in American Electric Power Co. v. Connecticut (AEPC), the eightmember Court divided equally on the question of whether states had standing to seek a federal common law remedy against air pollution, resulting in an affirmance of the circuit court's judgment granting standing. 131 S. Ct. 2527, 2535 (2011).
161. The AEPC divide replayed the sharp disagreement between the Justices over state standing in Massachusetts v. EPA, 549 U. S. 497, 498-99, 501 (2007).
162. Taxpayer standing in Establishment Clause challenges remains another point of sharp contention. Compare Winn, 131 S. Ct. at 1444-49 (finding no standing), with id. at 1450-51 (Kagan, J., dissenting) (arguing in favor of standing).
163. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 639 (1999).
164. 131 S. Ct. 2355, 2355 (2011).
165. Justice Ginsburg, joined by Justice Breyer, filed a concurrence without disagreeing with the majority's reasoning. The Court has since granted Ms. Bond's second certiorari petition concerning the validity of the statute under which she was charged as a Treaty Power enactment. 133 S. Ct. 978 (2013). One might query whether Bond is a typical example of individual standing for the structural constitution given the Treaty Power overlay and the peculiarity of the federal criminal law being invoked in respect to a putative chemical weapon. These aspects of the case, however, do not loom large in its resolution of the pure Article III question.
166. United States v. Bond, 581 F.3d 128, 131-32 (3d Cir. 2009). Sinister as this sounds, Ms. Bond's efforts appeared to be sophomoric at best. Id. at 132 ("Bond attempted to poison Haynes with the chemicals at least 24 times over the course of several months. She often would spread them on Haynes's home doorknob, car door handles, and mailbox. Haynes noticed the chemicals and usually avoided harm, but on one occasion sustained a chemical burn to her thumb.").
167. 306 U. S. 118, 144 (1939).
168. The Third Circuit was not alone in reading Tennessee Electric to bar individual standing in Tenth Amendment cases. See Bond, 131 S. Ct. at 2361 (collecting courts of appeal decisions to the same effect).
169. Bond, 131 S. Ct. at 2361.
170. It is not wholly without irony that the Bond Court would adjudicate an Article III question absent the interparty adversity typically thought necessary to Article III adjudication. See Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 692 (2012) ("[W]hat, exactly, is the basis for appointing counsel in order to 'support or defend' the judgment below? Litigants have interests; but judgments? If the litigants have no actual interest in defending the judgment, or have abandoned positions taken below, what conception of judicial authority authorizes the Court to intervene?"). Given the Court's sua sponte authority to analyze standing even in the absence of a party raising the question, the practice has perhaps more justification in Bond than elsewhere.
171. Bond, 131 S. Ct. at 2361-62; id. at 2366 ("An individual who challenges federal action on [structural constitutional] grounds is, of course, subject to the Article III requirements....").
172. Bond, 131 S. Ct. at 2364.
173. Cf. GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U. S. 375, 382 (1980) ("The purpose of the case-or-controversy requirement is to limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." (internal quotation marks omitted)).
174. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 580 (1992) (Kennedy, J., concurring) (noting standing's "common-law" roots);
175. see also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 150-52 (1951) (Frankfurter, J., concurring);
176. Coleman v. Miller, 307 U. S. 433, 460-61 (1939) (Frankfurter, J., concurring).
177. To my knowledge, the Court has never pursued the possibility of Coasean bargaining between litigants and affected entities who are not in the courtroom. In effect, such bargaining might be thought to occur in some instances through the use of joinder and interpleader rules. Those rules, however, are far from pellucidly clear. Cf. Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 Sup. Ct. Rev. 183, 184 (characterizing the relevant rules as "underutilized" and "impossible to comprehend").
178. Summers v. Earth Island Inst., 129 S. Ct. 1142, 1148 (2009).
179. Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250 (1990);
180. Maxwell L. Stearns, Standing at the Crossroads: The Roberts Court in Historical Perspective, 83 Notre Dame L. Rev. 875, 915 (2008) ("By demanding 'injury in fact', 'causation', and 'redressability', standing doctrine seeks a set of factors that correlate to traditional bipolar litigation. ").
181. The notion of "relevant" spillover effects has been developed formally by James M. Buchanan & Wm. Craig Stubblebine, Externality, 29 Economica 371, 374 (1962). I do not try here to provide a formal definition of when precisely spillovers are great enough to raise Article III concerns. The concept is, in practice, only poorly specified.
182. Summers, 129 S. Ct. at 1148.
183. Even if England had separation of powers or federalism to police, its principal courts were in their origins instruments of the Crown. See J. H. Baker, An Introduction to English Legal History 37-51 (4th ed. 2007).
184. Even prerogative writs issued by the King's bench, such as habeas corpus, "did not result from a contest between 'executive' and judicial bodies" or create any "checking and balancing" at least until the early 1600s. Paul D. Halliday, Habeas Corpus: From England to Empire 27 (2010).
185. Cf. Aziz Z. Huq, When Was Judicial Self-Restraint?, 100 Calif. L. Rev. 579, 584-86 (2012) (summarizing path of judicial review from 1800 to 2000).
186. Famously, Chief Justice Marshall's opinion in Marbury v. Madison, 5 U. S. (1 Cranch) 137, 170(1803), states that the function of a federal court "is, solely, to decide on the rights of individuals."
187. See also Massachusetts v. Mellon, 262 U. S. 447, 484 (1923) ("It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief." (citation and internal quotation marks omitted)).
188. See Heather Elliott, The Functions of Standing, 61 Stan. L. Rev. 459, 477 (2008) ("[T]he Court has suggested that mere numerosity creates a standing problem.").
189. See FEC v. Akins, 524 U. S. 11, 23 (1998) ("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.");
190. accord Los Angeles v. Lyons, 461 U. S. 95, 111-12 (1983);
191. Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974);
192. see also Warth v. Seldin, 422 U. S. 490, 498 (1975) (noting that standing "is founded in concern about the proper- and properly limited-role of the courts in a democratic society"). Some commentators argue that the Court has been too aggressive in screening out cases that could properly be resolved by a court.
193. United States v. Richardson, 418 U. S. 166, 179 (1974).
194. In Friends of the Earth v. Laidlaw Environmental Services (TOC), 528 U. S. 167, 191(2000), the Court expressed the aim that "the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake." The argument in the main text is similar, but not quite the same as Laidlaw's point.
195. Akins, 524 U. S. at 23.
196. In the administrative law context, the Court has pressed the same distinction between general laws and specifically targeted adjudications. See Bi-Metallic Inv. Co. v. State Bd. of Equalization of Colo., 239 U. S. 441, 445-46 (1915).
197. accord Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 Calif. L. Rev. 1915, 1918 (1986) (noting that the injury-in-fact analysis "carries two distinct inquiries under its broad mantle. Injury analysis demands the exploration of not only the directness or actuality of the litigant's claimed injury, but also the judicial cognizability of the interest alleged to be injured."); Fletcher, supra note 1, at 232-33 (same).
198. Lujan, 504 U. S. at 577.
199. Laird v. Tatum, 408 U. S. 1, 15 (1972).
200. Akins, 524 U. S. at 36 (Scalia, J., dissenting).
201. In Akins, Justice Scalia's dissenting opinion objected to the broad availability of relief Congress had enabled under the Federal Election Campaign Act, see 2 U. S. C. § 431 (4) (2006), to seek information about political committees. Id. at 30 (describing the statutory framework).
202. In a separate concurrence in Hein v. Freedom from Religion Foundation, Inc., 551 U. S. 587, 636 (2007) (Scalia, J., concurring), he pressed further on the same point by arguing that the institutional sorting function of standing precluded the judicial vindication of "[p]sychic [i]njur[ies]."
203. For example, in Dandridge v. Williams, 397 U. S. 471, 487(1970), the Court rejected a constitutional entitlement to social welfare payments because of the complex interdependencies of any such right and its effect on parties not present in the courtroom: "Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court." In an insightful new book, Professor Emily Zackin demonstrates that positive rights are often included in state constitutions, but judicial review is not necessarily central to their realization.
204. See Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights 11-12 (2013).
205. This is an important theme in the work of Professor William Stuntz. See, e.g., William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L. J. 1, 4 (1997) ("As courts have raised the cost of criminal investigation and prosecution, legislatures have sought out devices to reduce those costs.");
206. see also William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 793 (2006) ("The government pays for criminal procedure rules in the coin of forgone arrests and convictions. When a particular rule turns winning cases into losers, prosecutors seek substitutes....").
207. For critique in this vein, see Daryl J. Levinson, Aimster and Optimal Targeting, 120 Harv. L. Rev. 1148, 1148 (2007) ("Deeply embedded in the conventional legal mindset is a common law model of adjudication and liability premised on the ideal of bilateral corrective justice.... From an economic perspective, every element of this model is dubious.").
208. See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012).
209. For useful articulations of this function, see Drew S. Days III, The Solicitor General and the American Legal Ideal, 49 SMU L. Rev. 73, 76-79 (1995);
210. Drew S. Days III, When the President Says "No": A Few Thoughts on Executive Power and the Tradition of Solicitor General Independence, 3 J. App. Prac. & Process 509, 514-17 (2001).
211. See Cornelia T. L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 706-07 (2005) (noting frequency with which the Solicitor General intervenes in both high court and lower court litigation).
212. United States v. Lopez, 514 U. S. 549, 578 (1995) (Kennedy, J., concurring).
213. Jenna Bednar, The Robust Federation: Principles of Design 68-69 (2009).
214. Others describe federalism as involving reciprocal risks of self-dealing by the states and the national government. See, e.g., Rui J. P. de Figueiredo, Jr. & Barry R. Weingast, Self-Enforcing Federalism, 21 J. L. Econ. & Org. 103, 104 (2005) (describing the "twin dilemmas" of federalism).
215. Clinton v. City of New York, 524 U. S. 417, 452 (1998) (Kennedy, J., concurring).
216. The executive shares this view. See The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 43 Op. Att'y Gen. 275, 276 (1980) (rejecting legal stances that "could jeopardize the equilibrium established within our constitutional system").
217. Compare Morrison v. Olson, 487 U. S. 654, 690-91 (1988) (engaging in functionalist analysis)
218. with Bowsher v. Synar, 478 U. S. 714, 725-27 (1986) (using a formalist analysis). The formalist analysis seeks to identify and assign categories of powers to create equilibrium, whereas functionalists aim to make contextualized judgments about how to maintain some rough equality of arms between branches.
219. Gladstone, Realtors v. Vill. of Bellwood, 441 U. S. 91, 99-100 (1979).
220. To be sure, states or branches can file amicus briefs, as they commonly do. (Executive participation via the Solicitor General is familiar fare, but for studies of Congress and the states, see respectively Judithanne Scourfield McLauchlan, Congressional Participation as Amicus Curiae Before the U. S. Supreme Court 1-3 (2005)
221. and Paul M. Collins, Jr., Friends of the Supreme Court: Interest Groups and Judicial Decision Making 1-15 (2008)). But this does not provide them with the same ability to control the course of the litigation, introduce issues, or present evidence as if they were parties to the litigation.
222. For an extended analysis of the complex consequences of Free Enterprise Fund, see Aziz Z. Huq, Removal as a Political Question, 65 Stan. L. Rev. 1 (2013).
223. Lujan, 504 U. S. at 578.
224. Tatum, 408 U. S. at 15.
225. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)
226. (quoting Califano v. Yamasaki, 442 U. S. 682, 700-01 (1979)).
227. Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623, 658 (2012);
228. accord Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373, 375 (2005) ("[I]t is likely that, with a handful of exceptions, class actions will soon be virtually extinct.").
229. See, e.g., Edward L. Rubin & Malcolm M. Feeley, Judicial Policy Making and Litigation Against the Government, 5 U. Pa. J. Const. L. 617, 661 (2003).
230. A striking recent counterexample is Brown v. Plata, 131 S. Ct. 1910, 1910-11 (2011).
231. See John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1410-11 (2007).
232. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 949-99 (2000) (collecting examples).
233. The Federalist No. 51, at 320 (James Madison) (I. Kramnick ed., 1987) ("In republican government, the legislative authority necessarily predominates.").
234. Lujan, 504 U. S. at 577.
235. Freytag v. Comm'r of Internal Revenue, 501 U. S. 868, 878 (1991)
236. (citing Mistretta v. United States, 488 U. S. 361, 382 (1989)).
237. 468 U. S. 737, 766 (1984).
238. cf. Christopher Coleman et al., Social Movements and Social-Change Litigation: Synergy in the Montgomery Bus Protest, 30 Law & Soc. Inquiry 663, 687 n. 153 (2005) (describing Alabama's 1956 change of its constitution to facilitate white flight to private schools as a means to thwart public school desegregation).
239. Allen, 468 U. S. at 759;
240. accord Lujan, 504 U. S. at 572 & n. 6 (Scalia, J., plurality opinion) (identifying third-party intermediation as a barrier to Article III standing);
241. Simon v. E. Ky. Welfare Rights Org., 426 U. S. 26, 40-46 (1976) (same).
242. 547 U. S. 332, 344 (2006). The Cuno Court also evinced sensitivity to the "broad discretion" of state fiscal policymakers-a discretion it did not wish to crimp.
243. Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1444 (2011).
244. 130 S. Ct. 3138, 3147 (2010).
245. Winn, 131 S. Ct. at 1443.
246. In other cases, the Court has been willing to engage in such speculation. In Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. ("MWAA"), for example, the Court invalidated the transfer of Washington National Airport to the control of a regional authority on the theory that a mixed executive-legislative board that had a veto power over any transfer had influenced the airport's disposition. 501 U. S. 252, 265 (1991) (stating because "invalidation of the [board's] veto power will prevent the enactment of the master plan [to which plaintiffs objected]", Article III standing was obtained). The holding in MWAA is problematic insofar as it relies on unsupported supposition about the likely future actions of nonparties. Unlike Free Enterprise Fund, the MWAA Court cannot be condemned for eliding the standing question entirely.
247. The same point can be made about Morrison v. Olsen, in which the Court considered the constitutionality of the Independent Counsel statute under the Ethics in Government Act at the behest of an individual under investigation. 487 U. S. 654, 654-55 (1988). What warrant did the Morrison Court have, one might query, for presuming, even arguendo, that invalidation of the Independent Counsel statute would have led to abandonment, rather than reassignment, of the investigation? This surely depended on the decision of then-Attorney General Reno, another third party.
248. 462 U. S. 919, 930-31 (1983).
249. Id. at 924-59 (discussing application of 8 U. S. C. § 1254 (c) (1) to Mr. Chadha's case).
250. See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 275, 288 (1993);
251. accord Jessica Korn, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto 13 (1996) (arguing that "the legislative veto shortcut was inconsequential to congressional control of the policymaking process").
252. Another way of making the same point is by noticing that the immigration judge's decision respecting Mr. Chadha's case was already partially caused by an anticipation of congressional exercise of the legislative veto. The judge acted within a clearly defined and sequenced institutional context. In that context, the specter of a legislative veto necessarily factored into that judge's reasoning. His or her use of discretion must have accounted for that downstream possibility. See William N. Eskridge Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Calif. L. Rev. 613, 643-64 (1991) (describing the dynamic of anticipatory responses in a sequential game);
253. see also Barry R. Weingast & Mark. J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. Pol. Econ. 765, 765 (1983). A rational judge would, in expectation, grant relief more of the time if he or she knows that some of those orders will be reversed. It follows that in the absence of the legislative veto, we cannot be certain that Mr. Chadha's initial immigration benefit would even have been granted. The Court, in other words, eliminated both a potent cause of, as well as a potential barrier to, the discretionary boon that was the basis of Mr. Chadha's injury in fact. The Court does not, to be sure, account for such counterfactual causal considerations in standing doctrine, but that makes them no less practically significant. To see this, imagine a fixed class of immigrants situated similarly to Mr. Chadha. Say that under the legislative veto regime, one-third obtain discretionary relief, whereas without it one-sixth obtain such relief, even though Congress's use of the veto is in fact sporadic. After the Court's intervention, fewer individual litigants situated similarly
254. Another example of the complex and unintended effects of judicial intervention concerns the line-item veto, which was invalidated in Clinton v. City of New York, 524 U. S. at 438-39. A dynamic model of interbranch bargaining suggests that a veto "designed to reduce the bargaining incentives that lead to pork barrel legislation... is more likely simply to change the players in that process" by making the President a more influential participant in initial budget negotiations.
255. Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 Wash. & Lee L. Rev. 385, 417 (1992).
256. Bond v. United States, 131 S. Ct. 2355, 2364 (2011).
257. See, e.g., Craig v. Boren, 429 U. S. 190, 193 (1976) (describing "limitations on a litigant's assertion of jus tertii" but noting they are not "constitutionally mandated").
258. That is, the bar to third-party standing can be understood as a residue of the pre-Data Processing "legal right" regime. Not only must a litigant show they have been harmed, they must also identify a legal interest linked to that harm. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U. S. 150, 153 (1970).
259. 495 U. S. 149, 156 (1990).
260. The Arkansas Supreme Court engages in a comparative review of each capital penalty against earlier death penalty cases to assure itself of a sentence's proportionality. See, e.g., Whitmore v. State, 756 S. W.2d 890, 895 (Ark. 1988). Arkansas is one of a handful of states that "regularly impose[s] death sentences and carr[ies] out executions."
261. David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition 42 (2010).
262. Whitmore, 495 U. S. at 157.
263. In other instances, probabilistic gains have sufficed for standing purposes. See, e.g., Gen. Contractors v. Jacksonville, 508 U. S. 656, 666 (1993) (holding that loss of mere opportunity to compete on equal terms, without any guarantee of concrete gain, suffices for standing).
264. Yazoo & Miss. Valley R. R. v. Jackson Vinegar Co., 226 U. S. 217, 219-20 (1912).
265. Duke Power Co. v. Carolina Envtl. Study Grp., 438 U. S. 59, 80 (1978);
266. accord Singleton v. Wulff, 428 U. S. 106, 113-14 (1976).
267. The Court has also expressed concern about the need to "consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation" and the bar on advisory opinions. United States v. Raines, 362 U. S. 17, 21-22 (1960)
268. (quoting Barrows v. Jackson, 346 U. S. 249, 256 (1953)).
269. Bond, 131 S. Ct. at 2364.
270. The Federalist No. 51, at 286-87 (James Madison) (E. H. Scott ed., Chicago, Scott, Foresman & Co. 1898) (internal quotation marks omitted). I do not claim that this is Madison's only strategy for vindicating individual rights, but it is the only one at stake here.
271. Indeed, Madison was famously cautious about the efficacy of individual rights. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 325-26 (1996) (discussing Madison's and the Federalists' skepticism of bills of rights).
272. Bond, 131 S. Ct. at 2364.
273. See, e.g., Whitmore, 495 U. S. at 156.
274. By contrast, assignees can obtain standing. See Sprint Commc'ns Co. v. APCC Servs., 554 U. S. 269, 288-89 (2008).
275. In City of Los Angeles v. Lyons, the Court held that a plaintiff who had previously been illegally choked by police lacked standing to secure injunctive relief because he failed to "establish a real and immediate threat that he would again be stopped... by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on this part." 461 U. S. 95, 105 (1983). There is at least some tension between Lyons's unwillingness to entertain a probabilistic conception of standing and Bond's focus on the intentions of a legal instrument's drafters. Surely it is the case that Mr. Lyons was the intended beneficiary of the Due Process Clause, and surely an injunction of the kind he sought would have provided tangible security to a person who had been subjected to unjustified chokeholds by police on multiple occasions. Bond lends force to Professor Hessick's insightful and compelling argument that "Article III does not impose a minimum-risk requirement."
276. F. Andrew Hessick, Probabilistic Standing, 106 Nw. U. L. Rev. 55, 58 (2012).
277. Bond, 131 S. Ct. at 2364 (contending that "individual liberty secured by federalism [or the separation of powers] is not simply derivative of the rights of the States [or branches]").
278. For a skeptical look at the case for distinguishing the two kinds of systems, see José Antonio Cheibub, Presidentialism, Parliamentarism, and Democracy 22-23 (2007).
279. See David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N. Y. U. L. Rev. 762, 785-91 (2012) (presenting evidence that "the most distinctive and celebrated structural features of the U. S. Constitution have also fallen out of vogue").
280. Indeed, there is some reason to think that other nations' parliamentary systems are more desirable models for designers of new constitutions. See, e.g., Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 634 (2000) (opposing "the export of the American system [of separation of powers as a model for constitutions of other countries] in favor of an approach based on the constitutional practice of... many other nations").
281. For a recent analysis rejecting institutional design explanations for tyranny and dictatorship in favor of demographic ones, see Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 189-92 (2010).
282. See, e.g., Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 Cornell L. Rev. 1086, 1119-20 (1993) (discussing Philadelphia's liberty law, used to protect runaway slaves in the 1800s);
283. see also Earl M. Maltz, Slavery, Federalism, and the Structure of the Constitution, 36 Am. J. Legal Hist. 466, 471 (1992) (noting that the Fugitive Slave Clause of Article IV, Clause 3, was both proslavery and pro-national power).
284. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev. 1, 39 n. 157 (1996).
285. Frank B. Cross, Realism About Federalism, 74 N. Y. U. L. Rev. 1304, 1306-07 (1999).
286. See Milliken v. Bradley, 418 U. S. 717, 741-42 (1974) (barring interdistrict busing remedies in school segregation cases out of a concern for "local autonomy").
287. See, e.g., Rizzo v. Goode, 423 U. S. 362, 377-80 (1976);
288. Hills v. Gautreaux, 425 U. S. 284, 293 (1976);
289. Younger v. Harris, 401 U. S. 37, 43-46 (1971).
290. Bond, 131 S. Ct. at 2364
291. (quoting Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)) (quotation marks omitted).
292. 132 S. Ct. 2566, 2602 (2012).
293. The connection between federalism and individual liberty reoccurred in both public debates and judicial opinions respecting the individual mandate in a fashion "more redolent of Due Process Clause arguments" than Commerce Clause arguments. Seven-Sky v. Holder, 661 F.3d 1, 19 (D. C. Cir. 2011).
294. See, e.g., Katherine S. Newman & Rourke O'Brien, Taxing the Poor: Doing Damage to the Truly Disadvantaged 159-60 (2011) (discussing national welfare policy, and concluding that "the basic principle, that all American families are entitled to safety nets of equivalent value, should be made real by taking states out of the equation");
295. Sheryll D. Cashin, Federalism, Welfare Reform, and the Minority Poor: Accounting for the Tyranny of State Majorities, 99 Colum. L. Rev. 552, 554 (1999) (arguing that "for an identical set of underlying voter preferences with respect to redistribution, a different policy outcome will be reached depending on the level of government at which a decision is made");
296. Craig Volden, The Politics of Competitive Federalism: A Race to the Bottom in Welfare Benefits?, 46 Am. J. Pol. Sci. 352, 360 (2002) (finding that competitive pressures prevent states from increasing welfare benefits until surrounding states do the same).
297. See Paul E. Peterson & Daniel Nadler, Freedom to Fail: The Keystone of American Federalism, 79 U. Chi. L. Rev. 251, 256 (2012).
298. For exemplary studies of the complex relationship between decentralization and policy outcomes in corporation law and environmental law, see Michel Barzuza, Market Segmentation: The Rise of Nevada as a Liability-Free Jurisdiction, 98 Va. L. Rev. 935, 935-36 (2012) (identifying reasons for concern about the effect of interstate competition over corporate regulation);
299. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Raceto-the-Bottom" Rationale for Federal Environmental Regulation, 67 N. Y. U. L. Rev. 1210, 1210 (1992) (questioning operation of race-to-the-bottom dynamics in the environmental context).
300. In previous nonacademic writing, I have made the broader claim that fidelity to the separation of powers necessarily promotes certain fundamental liberties. See Frederick A. O. Schwarz Jr. & Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror 8 (2007). That claim, I think, had traction in the specific institutional and historical context in which it was made. Separation of powers "talk" certainly seemed to have more traction with legal and policy elites at the time than claims about the basic rights of terrorism suspects, who tend to be members of disparaged ethnic and religious formations. But I am now more cautious in thinking that the claim can be universalized, even if it had utility and force in a given historical and political context.
301. Aziz Z. Huq, Structural Constitutionalism as Counterterrorism, 100 Calif. L. Rev. 887, 923 (2012) (developing this point in the context of national security policymaking).
302. See Aziz Z. Huq, What Good is Habeas?, 26 Const. Comment. 385, 401-05 (2010) (presenting data to this effect).
303. See Simon Johnson & James Kwak, 13 Bankers: The Wall Street Takeover and the Next Financial Meltdown 80 (2010).
304. The recent Dodd-Frank Act permits cases to be transferred out of bankruptcy proceedings if their size presents an obstacle. 12 U. S. C. § 5383 (2012).
305. See also Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 208, 124 Stat. 1376, 1459-60 (2010)
306. (codified at 12 U. S. C. § 5388 (2012)) (authorizing removal of case from bankruptcy to Dodd-Frank resolution);
307. U. S. Dep't of Treasury, Financial Regulatory Reform: A New Foundation 76-79(2009), available at http://www.treasury.gov/initiatives/Documents/ FinalReport-web.pdf ("Bankruptcy is and will remain the dominant tool for handling the failure of a [bank holding company], unless the special resolution regime is triggered because of concerns about financial stability.").
308. See Maxwell L. Stearns & Todd J. Zywicki, Public Choice Concepts and Applications in Law 471-73 (2009) (describing potential theories of interest group influence on the courts);
309. see also Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L. J. 31, 66-68 (1991) (noting consequences of interest group influence on the courts).
310. For an example of how outcomes can be achieved through litigation when legislation is not an option, see, e.g., Paul Frymer, Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U. S. Labor Unions, 1935-85, 97 Am. Pol. Sci. Rev. 483, 483 (2003) (exploring how advocates secured desegregation of unions through the courts despite the absence of political branch support).
311. Rui J. P. de Figueiredo, Jr., et al., The New Separation-of-Powers Approach to American Politics, in The Oxford Handbook of Political Economy 200 (Barry R. Weingast & Donald Wittman, eds., 2006) (quotation marks omitted).
312. United States v. Lopez, 514 U. S. 549, 578 (1995) (Kennedy, J., concurring).
313. See, e.g., Lee v. Weisman, 505 U. S. 577, 598-99 (1992) (holding that clergy-delivered prayers at public school graduations violate the Establishment Clause).
314. See Richard H. Fallon Jr., The Linkage Between Justiciability and Remedies- and Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 667 (2006). Hence, in the 1960s and 1970s, environmental and consumer groups "made an end run [around Congress] to the courts, where they have skillfully exploited and magnified limited legislative gains."
315. Karen Orren, Standing to Sue: Interest Group Conflict in the Federal Courts, 70 Am. Pol. Sci. Rev. 723, 724 (1976).
316. I do not mean to ignore the possibility that litigants will pick flawed strategies, going for broke when they should proceed incrementally-as may currently be the case with litigation respecting same-sex marriage. See Scott Baker & Gary Biglaiser, A Model of Cause Lawyering (Oct. 29, 2012) (unpublished manuscript) (on file with author).
317. See, e.g., Locke v. Davey, 540 U. S. 712, 718-19 (2004) (discussing competing demands of the Establishment Clause and the Free Exercise Clause).
318. But cf. Ricci v. DeStefano, 129 S. Ct. 2658, 2664 (2009) (reading the disparate impact standard of Title VII narrowly to avoid conflict with the colorblindness norm of the Equal Protection Clause). If rightsrights conflicts were sufficiently pervasive, the case for "more is better" in the rights litigation context would also be properly cast into doubt.
319. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3156 (2010) (separation of powers);
320. Lopez, 514 U. S. at 578 (Kennedy, J., concurring) (federalism).
321. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943, 945 (1987) (describing balancing as an analysis that "identif[ies] interests implicated by the case and reaches a decision or constructs a rule of constitutional law by explicitly or implicitly assigning values to the identified interests").
322. For an alternative (and insightful) formulation of what is at stake in rights-related balancing, see Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 430 (1993) ("[T]he [constitutional] right... just is the right to demand [a] higher level of justification, and the right is satisfied when that higher level of justification is respected.").
323. For contrasting assessments of twentieth-century institutional developments at the national level, compare Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 459 (1989) (generally approbatory)
324. with Richard A. Epstein, The Mistakes of 1937, 11 Geo. Mason L. Rev. 5, 5 (1988) (generally critical).
325. Adrian Vermeule, The Invisible Hand in Legal and Political Theory, 96 Va. L. Rev. 1417, 1422 (2010);
326. cf. Adrian Vermeule, The System of the Constitution 70 (2011) [hereinafter, Vermeule, System of the Constitution] (suggesting that invisible hand mechanisms rest on (1) an explanation, (2) a value theory, and (3) a mechanism).
327. see R. G. Lipsey & K. Lancaster, The General Theory of Second Best, 24 Rev. Econ. Stud. 11, 11 (1956) (identifying the possibility that when exogenous, fixed constraints prevent the attainment of any one first-best condition, "the other Paretian conditions, although still attainable, are, in general, no longer desirable");
328. Akhil Reed Amar, America's Constitution: A Biography 63, 78, 182 (2005).
329. U. S. Const. art. I, § 6, cl. 2.
330. See Ex parte Levitt, 302 U. S. 633, 633-34 (1937) (rejecting Emoluments Clause challenge to Justice Black's appointment);
331. see also Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 215-16 (1974) (denying standing in a challenge to the eligibility of members of Congress to hold commissions in the Armed Forces Reserves during their continuance in office).
332. Congress routinely works around the Emoluments Clause through the Saxbe fix, "through which Congress removes [a representative's] ineligibility by reducing an office's salary." Note, The Ineligibility Clause's Lost History: Presidential Patronage and Congress, 1787-1850, 123 Harv. L. Rev. 1727, 1727 (2010).
333. Furthermore, lower courts have held that Congress is precluded from granting standing to challenge unconstitutional interbranch entanglements because of the absence of Article III standing. See Rodearmel v. Clinton, 666 F. Supp. 2d 123, 128-29 (D. D. C. 2009)
334. (holding that the Secretary of State Emoluments Act, S. J. Res. 46, Pub. L. No. 110-455, § 1 (b) (1) (3) (A)
335. Stat. 5036 (2008)
336. creating individual standing to challenge Secretary of State Hillary Clinton's appointment, did not overcome Article III standing hurdles), appeal dismissed for lack of jurisdiction, 130 S. Ct. 3384, 3384 (2010).
337. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1722 (2002). Some conservative jurists have called recently for reinvigoration of the nondelegation doctrine.
338. See, e.g., Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 34-40 (D. C. Cir. 2008) (Brown, J., dissenting) (castigating majority for thin nondelegation analysis and arguing that no standard was provided to guide the delegate in acquiring land in trust for "whichever Indians he chooses, for whatever reasons"). Note that I am not denying that courts can effectuate antidelegation values via statutory interpretation.
339. See Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 315-16 (2000). But, as I elaborate in Part IV, that practice rests on acoustically separate foundations not implicated by my main argument.
340. See INS v. Chadha, 462 U. S. 919, 930-31 (1983).
341. For a development of the imbalance point, see 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, 37-38 (1994).
342. Adrian Vermeule, Hume's Second-Best Constitutionalism, 70 U. Chi. L. Rev. 421, 436 (2003) (arguing that judges might engage in "systematic deference [or] systematic seriatim enforcement of local constitutional provisions", but that "judges should [not] evaluate global consequences on a case-by-case basis"). My point here is that judges should not take different strategies to related design questions.
343. See Lance v. Coffman, 549 U. S. 437, 442 (2007) (denying individual standing to bring claims under U. S. Const. art. I, § 4, cl. 1).
344. See Luther v. Borden, 48 U. S. (7 How.) 1, 20-21, 39-42 (1849).
345. 462 U. S. at 930-31.
346. See, e.g., Act of Feb. 14, 1903, Pub. L. No. 87, § 8, 32 Stat. 825, 829 (1903);
347. see also Act of Mar. 3, 1905, Pub. L. No. 215, § 2, 33 Stat. 1117, 1147 (1905) (directing investigation via concurrent resolution).
348. See Act of June 30, 1932, Pub. L. No. 212, § 407, 47 Stat. 382, 414 (1932).
349. One reason is not relevant here: Congress's use of legislative vetoes tended to fall off in the absence of political conflict between the branches. The 1940s and the 1970s were thus periods of increased employment of legislative vetoes. See David A. Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va. L. Rev. 253, 258-59 (1982). Of course, in the 1950s and 1960s, the earlier statutes with legislative vetoes remained on the books and in use.
350. And when Congress did use it, standing bars sometimes precluded adjudication. See McCorkle v. United States, 559 F.2d 1258, 1261-62 (4th Cir. 1977) (denying challenge to legislative veto provision in the Salary Act on standing grounds).
351. See, e.g., Abraham Bell & Gideon Parchomovsky, Givings, 111 Yale L. J. 547, 551 (2001).
352. 418 U. S. 166, 176-77 (1974) (rejecting Richardson's complaint as a "generalized grievance"). The Court also distinguished cases in which the plaintiff had a basis for standing.
353. see also McDonnell v. United States, 4 F.3d 1227, 1236-39 (3d Cir. 1993) (finding no standing to seek informational production from the government absent the filing of a Freedom of Information Act request as defined by statute).
354. U. S. Const. art. I, § 9, cl. 7.
355. For an introduction to the field see Daniel A. Farber & Philip P. Frickey, Law and Public Choice (1991).
356. Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 2 (1965) (identifying a negative correlation between group size and efficacy);
357. See Sam Peltzman, Toward a More General Theory of Regulation, 19 J. L. & Econ. 211, 213 (1976).
358. Voter distaste for a policy can drive up the "price" of that policy. See Arthur T. Denzau & Michael C. Munger, Legislators and Interest Groups: How Unorganized Interests Get Represented, 80 Am. Pol. Sci. Rev. 89, 99 (1986). Group size may also be uncorrelated to interest groups' ability to supply information, which is argued to be the principal currency of lobbying.
359. See Richard L. Hall & Alan V. Deardorff, Lobbying as a Legislative Subsidy, 100 Am. Pol. Sci. Rev. 69, 69 (2006).
360. Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 26 (2009) (noting "a surprising tendency for sides to be heterogeneous").
361. William F. Shughart II & Robert D. Tollison, Interest Groups and the Courts, 6 Geo. Mason L. Rev. 953, 967 (1998) ("While the judiciary is more independent of the ordinary political processes than the legislature or the executive branches, this independence does not place judges above the fray of interest-group politics....").
362. For formal models, see John M. de Figueiredo & Rui J. P. de Figueiredo, Jr., The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation, 4 Bus. & Pol. 161, 163 (2002) (modeling how "competing interest groups with differential resources configure their nonmarket spending over lobbying and litigation to maximize the possibility of a favourable policy outcome");
363. see also Paul H. Rubin, Christopher Curran and John F. Curran, Litigation Versus Legislation: Forum Shopping by Rent Seekers, 107 Pub. Choice 295, 297-302 (2001) (modeling interest group choice to use litigation rather than lobbying in respect to private law rules).
364. Richard A. Epstein, The Independence of Judges: The Uses and Limitations of Public Choice Theory, 1990 BYU L. Rev. 827, 827 (1990). Professor Elhauge has persuasively argued that many constraints on interest group influence on the judiciary are inefficacious.
365. David R. Stras, Understanding the New Politics of Judicial Appointments, 86 Tex. L. Rev. 1033, 1033, 1056 (2008)
366. (reviewing Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006)
367. & Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2007)) (noting "the proliferation of interest groups" involved in the judicial confirmation process);
368. See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model 316-26 (1993) (describing evidence of the influence of Justices' political attitudes on their voting patterns);
369. William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study, 1 J. Legal Analysis 775 (2009) (identifying a link between appointing coalition's ideology and judicial votes).
370. Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 Nw. U. L. Rev. 1551, 1579 (2003) (describing the manner in which a system of precedent creates an "incentive to engage in rent-seeking litigation" on the part of interest groups);
371. see also Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 Calif. L. Rev. 1309, 1329-51 (1995) (developing a similar concern about interest group manipulation and suggesting that standing doctrine provides a way of limiting such manipulation).
372. Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 22 (2010).
373. For a recent and powerful empirical demonstration of this point, see Kay Lehman Schlozman et al., The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy 19-20, 263-443 (2012).
374. The public record does not reveal what prompted Carol Bond's lawyers to raise the constitutional issue before the district court, and then to plead before trial, reserving the right to raise the issue on appeal. United States v. Bond, 581 F.3d 128, 132-33 (3d Cir. 2009).
375. See, e.g., Heckler v. Chaney, 470 U. S. 821, 831-32 (1985).
376. To be sure, the winners in the legislative process might seek to install their victory in the form of an agency rather than a policy directive. See Rui J. P. de Figueiredo, Jr., Electoral Competition, Political Uncertainty, and Policy Insulation, 96 Am. Pol. Sci. Rev. 321, 331 (2002) (observing that groups that are electorally weak are more likely to insulate their preferred policies by designing independent agencies). But then, the organic statute of the agency can be challenged.
377. See, e.g., United States v. Morrison, 529 U. S. 598, 612 (2000);
378. Lopez, 514 U. S. at 551.
379. Free Enter. Fund, 130 S. Ct. at 3147. For an analysis of how Free Enterprise Fund may be generative of further jurisprudence
380. In a challenge filed in the District of Columbia District Court, Article II has also been invoked to challenge new financial consumer protection laws. See Complaint at 3, 25-27, State Nat'l Bank of Big Spring v. Geithner, No. 1:12-CV-01032 (D. D. C. June 21, 2012).
381. Public choice theory counsels for a skeptical view of legislative work product as more often than not an acquiescence to rent-seeking minorities. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223, 243 (1986) ("In the legislative arena, interest group pressures are likely to prevail in a struggle to implement constraints on the efficacy of rent-seeking.").
382. The argument here is motivated by Saul Levmore, Interest Groups and the Problem with Incrementalism, 158 U. Pa. L. Rev. 815, 823-24 (2010) (describing a similar dynamic in interest group conflict over regulation).
383. See Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L. J. 1, 3-4 (2010).
384. See, e.g., Ryan J. Owens & Lee Epstein, Amici Curiae During the Rehnquist Years, 89 Judicature 127, 129-32 (2005) (reporting evidence that is consistent with amicus briefs having either considerable or no effect).
385. On federalism, see Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 Sup. Ct. Rev. 125, 132 (describing the effect of "changed circumstances" on the federal balance).
386. On the separation of powers, see Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan. L. Rev. 395, 453-72 (1995);
387. see also Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 129 (1994) (contending that "although we must adhere to the framers' basic principles, the proper application of these principles sometimes looks quite different today than it would have looked two hundred years ago").
388. Even those who assert their adherence to the Constitution's original meaning must attend to this problem. For example, adjudication of the line-item veto in Clinton v. City of New York, 524 U. S. 417(1998), entailed a determination as to how to understand the Presentment Clause in an age of omnibus legislation-a question to which there is no obvious originalist answer, and which divided the Court's two originalists, Justice Thomas and Justice Scalia.
389. Commandeering doctrine, for example, may have different valences pre- and post-September 11. See Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 Brook. L. Rev. 1277, 1285-91 (2004).
390. See generally Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993) (presenting general theory of translation as a key term in constitutional interpretation).
391. This is true for federalism as much as separation of powers issues. There is ample evidence that states play a vigorous and meaningful role in the national political process. See John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking 215 (2009) (concluding, on the basis of several case studies, that "state officials have numerous means at their disposal for resisting perceived federal encroachment on their interests").
392. The claim that Congress and the courts in particular lack any incentive to resist executive initiatives is usefully complicated by William G. Howell, Thinking About the Presidency: The Primacy of Power 16-17 (2013) ("Congress and the courts have the wherewithal to stall, even halt, the president's quest for power [but sometimes fail to do so].").
393. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 920 (2005) (arguing that officials often act based on personal and political incentives that do not entail defending institutional powers and prerogatives of the branch that employs them).
394. For a skeptical view of Congress on this score, see Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N. C. L. Rev. 587, 597-606 (1983).
395. See, e.g., Aziz Z. Huq, Enforcing (But Not Defending) 'Unconstitutional' Laws, 98 Va. L. Rev. 1001, 1031-34 (2012) (discussing various kinds of "administrative constitutionalism", which evince an executive branch commitment to take seriously legal rules);
396. Aziz Z. Huq, Binding the Executive (by Law or by Politics), 79 U. Chi. L. Rev. 777, 781-83 (2012)
397. (reviewing Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010)) (arguing that elected federal officials are motivated by a preference for legality and constitutionality).
398. On the evolution of cooperative strategy in situations of repeated play, see Robert Axelrod, The Evolution of Cooperation 54 (1984);
399. Elinor Ostrom, Collective Action and the Evolution of Social Norms, 14 J. Econ. Persp. 137, 139-41 (2000).
400. David A. Strauss, The Solicitor General and the Interests of the United States, 61 L. & Contemp. Probs. 165, 168, 172 (1998). To be clear, Professor Strauss is making a normative claim here, albeit one that he sees as having some resonance in practice.
401. For accounts of the influence of states' attorneys' general, see Cornell W. Clayton, Law, Politics and the New Federalism: State Attorneys General as National Policymakers, 56 Rev. Pol. 525 (1994);
402. Colin Provost, When to Befriend the Court? Examining State Amici Curiae Participation Before the U. S. Supreme Court, 11 St. Pol. & Pol'y Q. 4, 5-6 (2011).
403. By no stretch of the imagination is this tendency universal. One might fairly criticize the state litigant in New York v. United States, 505 U. S. 144(1992), for being willing to renege on a complex deal it had reached with other states to resolve an intractable interstate commerce problem.
404. Would injury-in-fact doctrine as it currently exists prevent this kind of strategic litigation? I doubt it. Cf. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1305 (1976) ("[I]t is never hard to find [a]... plaintiff to raise the issues.").
405. For an analysis of the causes of recent ideological polarization at a national level, see Nolan McCarty, Does Gerrymandering Cause Polarization?, 53 Am. J. Pol. Sci. 666, 672-73 (2009);
406. cf. Alan I. Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy 34-57 (2010) (arguing that party-level polarization does not reflect polarization within the population).
407. For example, the civil damages provision of the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1902-55
408. (codified at 42 U. S. C. § 13701 (2006)), had the support of thirty-eight states' attorneys general, yet was opposed by other states, and was eventually invalidated on federalism grounds.
409. Philip P. Frickey and Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L. J. 1707, 1729 (2002).
410. An early example is Ex parte Virginia, 100 U. S. 339, 340-41(1880), in which both the defendant in a federal criminal prosecution (who was a state court judge) and also the state of Virginia filed habeas petitions challenging the constitutionality of the underlying federal criminal statute.
411. The precise delineation of state standing raises complex issues beyond the scope of this Article. See generally Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387 (1995). It suffices here to say that there have long been many instances in which states clearly have standing to vindicate their sovereign interests.
412. See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U. S. (13 How.) 518, 522-24 (1851) (granting standing to Pennsylvania to sue to prevent a violation of the dormant commerce clause);
413. See Pub. Citizen v. U. S. Dist. Court for D. C., 486 F.3d 1342, 1351 (D. C. Cir. 2007).
414. See United States v. Armstrong, 517 U. S. 456, 464 (1996) ("[A] presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." (citation and internal quotation marks omitted)).
415. I should emphasize again that my argument does not reach arguments that an agency or government entity has erroneously construed a statute that allows government enforcement. See supra text accompanying note 43. In addition, habeas review of executive branch detention decisions operates like judicial review of an agency insofar as the claim that a coercive action is not authorized by statute plainly falls within the writ's ambit. See, e.g., Hamdan v. Rumsfeld, 548 U. S. 557, 567 (2006) (invalidating, on habeas, the application of an executive order envisaging trial by military commission). A criminal defendant can clearly state that her conduct did not fall within the reach of a statute.
416. Ex parte Watkins, 28 U. S. (3 Pet.) 193, 203 (1830);
417. see also Ex parte Lange, 85 U. S. (18 Wall.) 163, 178 (1873) (invalidating sentence, where the sentencing court had already imposed the maximum available penalty). Over time, Watkins's definition of jurisdictional errors expanded to include challenges to the constitutionality of an underlying statute.
418. See Ex parte Siebold, 100 U. S. 371, 376-77 (1879).
419. The Watkins rule developed in complex, albeit not wholly analytically satisfying ways. The best available reconstruction of the doctrine is Ann Woolhandler, Demodeling Habeas, 45 Stan. L. Rev. 575, 597-601 (1993).
420. See Wright v. West, 505 U. S. 277, 285 (1992) ("Absent an alleged jurisdictional defect, 'habeas corpus would not lie for a [state] prisoner... if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts.'"
421. (quoting Fay v. Noia, 372 U. S. 391, 459-60 (1963) (Harlan, J., dissenting))).
422. 28 U. S. C. § 2254 (d) (1) (2006);
423. see also Williams v. Taylor, 529 U. S. 362, 407 (2000) (glossing § 2254 (d) (1)).
424. Note that this provision is only one ground of postconviction habeas relief, compare 28 U. S. C. § 2254 (d) (2), and does not always provide the relevant standard of judicial review.
425. See, e.g., Panetti v. Quarterman, 551 U. S. 930, 945 (2007).
426. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) (holding that executive officers are generally shielded from liability so long as their conduct does not violate "clearly established... rights of which a reasonable person would have known").
427. John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 209 (2013).
428. This interest can be understood in due process terms. See Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 848 (1986) ("Article III, § 1, serves both to protect the role of the independent judiciary within the constitutional scheme of tripartite government,... and to safeguard litigants' right to have claims decided before judges who are free from potential domination by other branches of government." (citation and quotation marks omitted)).
429. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 225-27 (1995) (forbidding Congress from directing reopening of decided cases);
430. Chi. & S. Air Lines v. Waterman S. S. Corp., 333 U. S. 103, 113 (1948) ("Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.");
431. United States v. O'Grady, 89 U. S. (22 Wall.) 641, 647-48 (1874) ("Judicial jurisdiction implies the power to hear and determine a cause, and... Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal....").
432. See Jung v. Ass'n of Am. Med. Colls., 339 F. Supp. 2d 26, 43 (D. D. C. 2004) ("Causes of actions only become actionable property interests upon the entry of final judgment."
433. (citing Adams v. Hinchman, 154 F.3d 420, 424 (D. C. Cir. 1998)));
434. accord Grimesy v. Huff, 876 F.2d 738, 744 (9th Cir. 1989) ("[A] party's property right in any cause of action does not vest until a final unreviewable judgment is obtained." (citation and emphasis omitted)).
435. 131 S. Ct. 2594, 2608-20 (2011).
436. Stern was not the first time the Court has invalidated applications of bankruptcy court jurisdiction on the ground that it infringed Article III. See also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 58 (1982).
437. Stern, 131 S. Ct. at 2609.
438. I take no position on whether Stern was rightly decided. For a very helpful discussion placing both the decision in historical perspective and also exploring its consequences, see Douglas G. Baird, Blue Collar Constitutional Law, 86 Am. Bankr. L. J. 3, 22 (2012) ("Stern has potentially far-reaching consequences that might unsettle the ability of the bankruptcy judge to control her docket.").
439. Stern, 131 S. Ct. at 2609;
440. Other cases implicate substantially parallel claims. See Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 426 (1995);
441. Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 50 (1989);
442. Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 847-49 (1986);
443. Thomas v. Union Carbide Agric. Prods. Co., 473 U. S. 568, 576 (1985).
444. See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 467-70 (1991) (using a clear statement rule to shield states' ability to determine the forms of their own government structures, a federalism value not directly enforced by the Court);
445. cf. Solid Waste Agency of N. Cook Cnty. v. U. S. Army Corps of Eng'rs, 531 U. S. 159, 172 (2001).
446. See, e.g., Pub. Citizen v. U. S. Dep't of Justice, 491 U. S. 440, 443 (1989).
447. 529 U. S. 848, 858-59 (2000).
448. Rapanos v. United States, 547 U. S. 715, 738 (2006) (Scalia, J., plurality opinion);
449. see also Clark v. Martinez, 543 U. S. 371, 382 (2005) ("The canon is thus a means of giving effect to congressional intent, not of subverting it.").
450. For an effective and recent articulation in these pages of the countervailing view, see Jonathan D. Urick, Note, Chevron and Constitutional Doubt, 99 Va. L. Rev. 375, 412 (2013).
451. See Aziz Z. Huq, The Institution Matching Canon, 106 Nw. U. L. Rev. 417, 428 (2012).
452. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597 (1992).
453. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex. L. Rev. 1549, 1985-87 (2000).
454. For a similar idea, see Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L. J. 2, 41-42 (2008).
455. See Frederick Schauer, Ashwander Revisited, 1995 Sup. Ct. Rev. 71, 88.