Who Needs Standing?

Advisory Opinions are Bad, Mmmkay?

By Leon H Wolf Posted in Comments (4) / Email this page » / Leave a comment »

Other RedState writers are currently fisking the Taylor opinion (warning: .pdf file) in the NSA case as we speak for problems with the substance of the opinion. I felt it necessary to write a short post on what is perhaps the most ridiculous part of the whole opinion, the part that deals with a seldom discussed (but important) constitutional doctrine: the doctrine of standing. The doctrine of standing is one of the most important checks on the power of the Supreme Court, which [theoretically] prevents "advisory" opinions, and policy choices made by unelected judges. Judge Taylor has made it clear that in her eyes, standing is an illegitimate doctrine, and courts should feel free pass judgment on anything any person in government does.

What this means for the Separation of Powers below the fold:

The basic and most important requirement for standing is that you cannot bring a suit in court unless you can prove that you have suffered an actual injury, or an injury-in-fact. Second, you must be able to prove that your injury was caused by the defendant. Third, you must be able to prove that your injury is capable of being redressed by a court. The point of these requirements is that the court is not supposed to be a third political branch, passing "advisory" judgments on which laws are good or bad, wise or unwise. The courts are supposed to be a place where individuals can go to seek redress for injuries that they themselves have suffered. These requirements are constitutional in nature, and have been expounded upon in cases like Lujan v. Defenders of Wildlife. Most germane to this case, however, is Laird v. Tatum, in which the Army had developed a data-gathering system to monitor the activities of some individuals who were accused of causing civil unrest in the 1960s. The plaintiffs in that case had no evidence that the government was conducting actual surveillance upon them, so they were instead forced to assert that the very existence of the program had a "chilling effect" on their communications, and that this sufficed for standing. In other words, the facts are virtually indistinguishable from the present case.

None of the plaintiffs here can show that they have actually been subjected to this surveillance (nor, indeed, could they have done so, since the judge issued this ruling solely on the basis of press releases and news reports), but were instead reduced to arguing this:

All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

This is, to put it simply, another way of alleging that their communications have been "chilled." They are not alleging that they had to spend extra hours traveling, or couldn't communicate with their sources because their sources were actually subjected to surveillance, but rather that the very existence of the program "chilled" their sources to the point that they wouldn't talk. Judge Taylor's attempt to distinguish Laird is laughable:

Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army’s domestic surveillance program. Presbyterian Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum, 408 U.S at 13) (emphasis added). The Plaintiffs here are not merely alleging that they “could conceivably” become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President
indeed has publicly acknowledged that the types of calls plaintiffs are making are the types of conversations that would be subject to the TSP.

The distinction between alleging injury based on the mere existence of a surveillance program, and alleging injury based on the fact that one "could conceivably" be subject to surveillance because of the existence of a surveillance program is a distinction only created by the insertion of superfluous and repetitious words: the concepts are one and the same. Not to worry, the judge finds more distinctions:

The Plaintiffs in this case are not claiming simply that the Defendants’ surveillance has “chilled”
them from making international calls to sources and clients. Rather, they claim that Defendants’ surveillance has chilled their sources, clients, and potential witnesses from communicating with them.

In case you're wondering, the reason the judge is spouting this transparent nonsense eventually becomes clear: she doesn't believe in the doctrine of standing or the purposes it serves at all:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one
another. It is within the court’s duty to ensure that power is never “condense[d] ... into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997).

In other words, there's no such thing as a non-justiciable case! Forget the decades of precedent declaring that there are simply some issues that are incapable of being resolved in court - if Federal District Judge Taylor wants to pass an opinion on a particular program, she darn well will! The arrogance of this particular statement is breathtaking: the assertion that the court can pass judgment on anything the President does, even in the absence of concrete injury, spits on the very existence of the standing doctrine, and disregards the clear Constitutional "case or controversy" requirement. It is especially ironic that Judge Taylor would see fit to lecture the President in the course of the same paragraph about stepping outside the boundaries of powers allocated to him in the Constitution!

Just as shocking, Judge Taylor goes on to suggest that the mere existence of a secret program confers standing on... apparently anyone, I guess:

Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for
secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government.

So, because no one has legitimate standing, everyone must be given standing, in Judge Taylor's opinion. Simply astounding. Under this logic, anyone in the United States could sue the government for anything they are doing in a program, if part of it is being done in secret, regardless of whether they can prove injury done by it at all.

I won't get in to all the other arrogant, lecturing nonsense in this opinion about Separation of Powers, etc. - but it seems obvious that Separation of Powers is a concept Judge Taylor only believes in when it is applied to the Executive Branch. This is not, I suppose, unusual; all branches of government are most likely to invoke Separation of Powers against the others, but rarely do you see the principle invoked in the midst of such a blatant violation of the same. I'm all for the ultimate judicial resolution of this issue, as I've said before; but that does not justify throwing out decades of precedent or Article III of the constitution to get there. One alleged constitutional shortcut by the executive branch does not justify a clear and obvious constitutional shortcut by the judicial branch.

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Who Needs Standing? 4 Comments (0 topical, 4 editorial, 0 hidden) Post a comment »

This is how democracy really dies - with the bang of a judge's gavel.

Will the libs now start spouting that we have a Constitutional right not to be chilled? Can we now talk about the "chilling effects" clause of the Constitution? It must be in there right next to the "separation of church and state" and "right to privacy" clauses.

I just skimmed the decision, but I agree with you that the District Court's standing analysis is quite dubious (putting aside her bizarre comments to the effect that standing must exist because the court wants to reach the merits of what she regards as a serious constitutional issue). The court's discussion of standing, if accepted, would broaden the notion of "injury in fact" quite a bit. A few facts were accepted as undisputed. First, no one knows whether any particular communication has been intercepted. And, as far as this case goes, no one ever will because the "state secrets" doctrine precludes any attempt to force any such disclosure. The court rejected the "state secrets" defense as to the NSA intercept program (but accepted the same defense as to the data mining program) because the court found that it was possible to adjudicate the claims based only on what the Gov't has officially disclosed about the NSA intercept program. Thus there will never be any discovery about whether any actual communications involving the plaintiffs were intercepted.

To find standing, the court initially addresses Laird v. Tatum, a Vietnam-era case where the SCOTUS had dismissed on standing grounds a challenge to the Army's domestic surveillance program. The SCOTUS held that there was no standing if the "injury in fact" claimed by plaintiffs was the chilling of the exercise of their First Amendment rights because of the very existence of the surveillance program "without more." Citing the "without more" qualifier, Judge Taylor finds that there is "more" here -- that the foreigners whom plaintiffs want to communicate with (without the inconvenience of going across the bridge to Canada, this case having been decided in Detroit) will refuse to talk to them if plaintiffs are in the US. Basically, the "more" is that in this case, both parties to the communications claim to have been "chilled," whereas in Laird it was just the plaintiffs. Like you, I wasn't bowled over by that distinction.

The judge concludes that her standing ruling is supported by cases in other areas where standing has been found. She cites as instructive an environmental case where the plaintiffs said that they had stopped using a particular body of water because of the presence of pollutants. Second, she cites a case involving a church that claimed to have lost membership because the Gov't had planted listening devices in the church.

In the environmental case, the injury in fact stemmed from the fact that there were pollutants in the water that plaintiffs wanted to use. Their right to use the body of water seems to have been unquestioned. Thus, there was nothing speculative about whether these particular plaintiffs had suffered a concrete injury, distinct from any injury that the public as a whole might have suffered. Without knowing what international calls may have been subjected to surveillance, the plaintiffs in the NSA case are in a different position. The "church" case is even more remote, since there it was established that the church building had been bugged. Assuming that the bugging was illegal (that was part of the claim that the church was making on the merits), it seems clear that the church suffered a direct injury in fact that distinguished it from all others.

Standing cases are notoriously all over the lot, and their reasoning is often opaque, to say the least. So the issue is not a sure winner for the Gov't. But on a quick read, I agree with you that the court's standing analysis is open to serious question.

The basic and most important requirement for standing is that you cannot bring a suit in court unless you can prove that you have suffered an actual injury, or an injury-in-fact. Second, you must be able to prove that your injury was caused by the defendant. Third, you must be able to prove that your injury is capable of being redressed by a court.

It's guilty until proven innocent now?

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