Lujan V. Defenders of the Wildlife – Endangered Species Act

• Scalia 1992. SCt denied standing to a public interest group that sought to question an interpretation of the Endangered Species Act.

• Must be “actual or imminent.” The “injury in fact” must be “actual or imminent.” Thus, if the threatened harm is far in the future, or too speculative, the “actual or imminent” element will not be satisfied, and standing will not be found.

• Facts. Ps challenge certain federal agency action that will have the effect of endangering certain species abroad. D (U.S. government) argues that the Ps do not have standing. Ps retort that they have in the past, and will again, travel to the habitats of the potentially affected species, in order to observe/study those species.

• Holding:

• Scalia held that Ps cannot sue because they are not the objects of the government action. Ps have not shown the requisite actual or imminent harm. “Such ‘someday’ intentions – without any description of concrete plans, or indeed any specification of when the someday will be – do not support a finding of the ‘actual or imminent’ injury that our cases require.”

• Scalia’s language seemed to imply an absolute constitutional barrier, but it is easily crossed: Ps could have brought plane tickets, or Congress could have created a $1 bounty for anyone who successfully sued. The latter suggests that “injury in fact” isn’t an Article III requirement at all.

• Concurrences.

• Kennedy. Concurring in part, Kennedy concluded that the Ps haven’t demonstrated a concrete injury. He suggested that SCt needed to be sensitive to new rights of action that are not analogous to common law rights of action.

• Stevens. Concurring in judgment, Stevens thought that the Ps have standing, but that they lose on the merits.

• Dissent - Blackmun. Argued that the plurality opinion invited executive lawlessness and made unfounded assumptions about causation.

Raines V. Byrd - Line item veto

• Rehnquist 1997. Dismissed, for lack of standing, a challenge to the Line Item Veto Act brought by six members of Congress.

• Majority. No interest in avoiding “institutional” loss of power. SCt held that the “abstract dilution of institutional legislative power” is not sufficient injury to permit standing.

• Members of a political body, such as a legislature, do not have standing to litigate against an action that they say takes away the political power of that body.

• Thus members of Congress who unsuccessfully voted against a bill allowing line-item by the President were held not to have standing to litigate the constitutionality of the resulting statute, where their only claim was that the bill “causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress, and both Houses of Congress equally.”

• Rationale. Majority reasoned that P congressmen were not alleging injury to themselves as individuals, merely injury to the position of Member of Congress. And the institutional injury they alleged was “wholly abstract and widely dispersed.” Therefore, the Ps did not have the “concrete and particularized” interest required for standing.

• Votes needed to pass bill. But a different situation would be presented if a Congressperson’s vote were truly cancelled, in the sense of deprived of all of its effect. Thus the Raines Court distinguished a prior case, Coleman v. Miller (1939) in which the Kansas legislature had deadlocked 20-20 on whether to ratify a particular constitutional amendment, and in which the Lieutenant Governor had broken the tie. When the 20 members who voted “no” sued on a claim that the tie meant that the legislature had not in fact ratified the amendment, the SCt found that they had standing. But the Raines Court held that Coleman stands only for the proposition that “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” In Raines itself, by contrast, the Ps simply lost by being outvoted, so their votes had not been “completely nullified,” and they thus had no standing.

• Concurrence - Souter. Wants to keep SCt out of what is essentially an inter branch controversy.

• Dissents.

• Stevens. Thought that this law denies every member of Congress his right to vote on the measures that ultimately become law.

• Breyer. Thought that this statute “immediately affects the legislators’ ability to do their jobs.” But he concedes that this is a hard case, because in order to fall within Article III’s judicial power, a dispute must be at least somewhat similar in form to “matters that were the traditional concern of the courts at Westminster.”