So consider this column a standing alert: recent developments of potentially great consequence are pushing the question of standing to the forefront in a way that promises to make it one of the hot legal topics of the coming months or even years. Litigation over health care and stem cell research is scrambling the usual playlist. Conservative federal judges, who typically take a constricted view of eligibility to bring a federal lawsuit, are suddenly throwing the courthouse doors open wide.
Conservatives’ newfound appreciation for standing is of a piece with their recent embrace of judicial activism, as expressed by Republican senators’ evident yearning for judges willing to strike down the new health care law. “The American people are concerned about their courts,” Senator Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, said on “Face the Nation” on the eve of Elena Kagan’s Supreme Court confirmation hearing [June 27]. “They’re concerned about a growing expansive government that seems to be beyond anything they’ve ever seen before. And they’d like to know what their judges might have to do about it.”
Another conservative Republican, Senator John Barrasso of Wyoming, after complaining that the health care law was “forced down the throats of the American people,” (that would have been by the democratically elected Congress) suggested on Fox News that he would evaluate the Kagan nomination based on whether she agreed with him that the law was unconstitutional: “Where do states’ rights come in, where is the role of the federal government, what can they mandate to the American people, and I’m going to want to hear answers on that.” (Ms. Kagan declined to be drawn into the health care debate, and Senator Barrasso voted against her along with all but five of his fellow Republicans.)
While the sight of senators flamboyantly straddling both sides of an issue hardly raises an eyebrow, flip-flops are not so easy for judges, who stake their ground in published precedent-setting opinions that can be awkward to disavow. Personally, I can hardly wait to watch Chief Justice John G. Roberts Jr. and his allies, for whom raising the barriers to standing is a core part of their agenda, figure out how to respond when one of the new issues reaches the Supreme Court.
To begin with health care, states are the major plaintiffs in cases, filed by Republican attorneys general, that challenge the constitutionality of the Patient Protection and Affordable Care Act, as nobody calls it. The main target of these lawsuits is the individual mandate, the requirement that beginning in 2014, people who can afford it must obtain health insurance or pay a penalty. In the case brought by Florida and 19 other states, the argument is that the mandate infringes on the states’ “sovereign ability to confer rights upon their citizens” and will drain the states’ budgets by prompting residents to file for Medicaid rather than buy their own insurance. In a separate lawsuit, Virginia argues that the mandate is unconstitutional because it “exceeds the enumerated powers conferred upon Congress.”
While these may be interesting arguments (although I confess to not understanding Florida’s point about its “sovereign ability”), the question that comes to mind is whether the states have standing to make them. Three years ago, in a rare pro-standing decision from the current court, the Supreme Court ruled that a group of states led by Massachusetts had standing to challenge the refusal of the Bush administration Environmental Protection Agency to assert regulatory jurisdiction over automobile emissions that contribute to global warming. How that decision informs the new cases is an intriguing question.
The 2007 case, Massachusetts v. Environmental Protection Agency, was decided by a vote of 5 to 4. Chief Justice Roberts wrote a dissenting opinion for himself and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. He began by reiterating the three requirements for standing that the court has derived from Article III of the Constitution, which limits the federal courts’ jurisdiction to “cases” and “controversies.”
First, there must be an allegation of a “concrete and particularized” injury, one that is “actual and imminent, not conjectural or hypothetical,” and that affects the plaintiff personally and not simply “the public at large.” Second, the injury must be “fairly traceable to the defendant’s allegedly unlawful conduct.” And third, the injury must be “likely to be redressed by the requested relief.”
The three requirements — plaintiffs must satisfy all three — are often abbreviated to “injury-in-fact,” “causation,” and “redressability.” The Massachusetts lawsuit met none of the three, the chief justice said, concluding that the suit “has no basis in our jurisprudence.”
That first part of the Roberts dissent was composed largely of quotations from earlier opinions that might well have been pasted together by a law clerk. But at the end, the opinion diverged into an obviously personal and even passionate statement about what the chief justice saw as the magnitude of the majority’s error in permitting the lawsuit to go forward. The majority’s opinion amounted to the most expansive ruling on standing since a 1973 decision, he complained, a decision that had appeared to be safely interred but was now rising from the grave.
That decision, United States v. Students Challenging Regulatory Agency Procedures, usually referred to as Scrap, had permitted five law students to sue the Interstate Commerce Commission over a railroad rate increase that the students said would lead to less recycling and more pollution. The case was “the previous high-water mark of diluted standing requirements,” Chief Justice Roberts wrote, adding, “Scrap made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts, and not intrude on the politically accountable branches.”
A more conservative Supreme Court largely repudiated Scrap in a 1992 opinion by Justice Scalia, an opinion that John Roberts, then a lawyer in private practice, celebrated in an article he published the following year in The Duke Law Journal. In his dissenting opinion in the Massachusetts case, Chief Justice Roberts mourned what he saw as the earlier decision’s resurrection: “Today’s decision is Scrap for a new generation.”
To support its claim that it faced a specific and concrete injury from unregulated climate change, Massachusetts produced evidence that its coastal waters were rising and were likely to rise further. What plausibly comparable “injury-in-fact” from the health care law are the states allege in the current cases? None, according to the Justice Department’s motion to dismiss the Florida lawsuit. “The states have not identified an imminent, actual and concrete injury to their own interests,” the government’s brief asserts. Given that the individual mandate does not kick in until 2014, the brief observes, any claim of injury is nothing more than speculation, and any decision risks “becoming a mere advisory opinion if the world turns out differently than what plaintiffs now suppose.”
That argument did not immediately persuade Judge Roger Vinson, who held the first hearing in the case, State of Florida v. United States Department of Health and Human Services, in the federal district courthouse in Pensacola last week. While not issuing a formal ruling, Judge Vinson indicated that he would not dismiss the lawsuit and set Dec. 16 for a further hearing. The judge in the Virginia case, Henry E. Hudson, refused last month to dismiss that state’s suit, Commonwealth of Virginia v. Sebelius. A further hearing will take place in federal district court on Oct. 18.
Then there is the embryonic stem cell litigation. Last year, a group of plaintiffs including the Christian Medical Association, Nightlight Christian Adoptions and two scientists who conduct research using adult stem cells sued to block President Obama’s executive order that removed limitations on federally financed research using stem cells from human embryos. Chief Judge Royce C. Lamberth of Federal District Court in the District of Columbia promptly dismissed the suit, finding that no plaintiff had standing. That appeared to be the end of the case.
Then in June of this year, a panel of the United States Court of Appeals for the District of Columbia Circuit reinstated the suit. The panel found that the two researchers were entitled to “competitor standing,” on the theory that they might have more trouble getting research grants from the National Institutes of Health if the N.I.H. now had to spread its grant money among all stem cell researchers, embryonic as well as adult. “The plaintiffs will have to invest more time and resources to craft a successful grant application,” Judge Douglas H. Ginsburg wrote, adding, “That is an actual, here-and-now injury.” The other members of the panel, Judges Janice Rogers Brown and Brett M. Kavanaugh, are two of the country’s most conservative federal judges. Judge Ginsburg, a libertarian conservative, is a prominent critic of major tenets of modern constitutional law.
Ordered by the appeals court to decide the case, Sherley v. Sebelius, Judge Lamberth last month issued a preliminary injunction barring the administration from carrying out the executive order. (The injunction has been temporarily lifted, pending appeal, under a stay granted on Sept. 9 by a separate panel of the appeals court that included Judge Brown and two other judges.) The case has attracted a great deal of attention, but none of it, as far as I know, directed toward the plaintiffs’ standing. According to the Justice Department’s emergency motion requesting the stay, one of the two researchers has never even applied for a grant from the N.I.H., while the other has received nearly half a million dollars since the expanded research guidelines took effect last year. To call their claim to injury-in-fact “speculative,” as the government’s brief does, is an understatement. I would call it incredible — almost as incredible as who these days is standing up for standing.