Wednesday, November 27, 2013
Clapper and Probabilistic Standing
Standing is a doctrine that probably turns a lot of people off -- it's subject to heavy criticism for being manipulable and, in fact, actually manipulated. But it's important, as is any doctrine that holds the keys to the courthouse door. The Court's decision several months ago in Clapper v. Amnesty International has been discussed heavily, in particular for its implications for judicial review of intelligence gathering programs. Steve Vladeck has recently posted a characteristically sharp take on this issue.
Clapper also matters for admin law. Writing for the 5-Justice majority, Justice Alito insisted that the plaintiffs (U.S. entities that wished to communicate with foreigners who might be subject to wiretapping under the law) had to show that their injury was "certainly impending" if they wished to claim that they were suffering "imminent injury" as Article III uses that term. But he conceded that in an earlier case (interestingly, where he wrote the opinion) imposed a seemingly more lenient standard for imminence, requiring only that the plaintiffs prove that they ran a "substantial risk" of suffering harm. In Clapper he was able to elide this inconsistency by concluding that in any event the plaintiffs there failed both of these standards.
All this matters to regulatory law because risk reduction is what a lot of regulation aims at. This is especially the case when agencies regulate by incentivizing third parties to act in ways that help the intended ultimate beneficiaries of the regulatory program. These styles of regulating -- which are not really new but have gained more notoriety in the last couple of decades -- raise the question whether plaintiff-regulatory beneficiaries would be able to show the requisite imminent injury if they complained that government was regulating poorly.
I think Clapper's analysis can accommodate such claims. I explain why in this brief essay. Briefly, the answer is, first, that Clapper recognized the competing, "substantial risk" test. It didn't reject it (which might have been awkward, given that Justice Alito wrote the earlier opinion as well as Clapper.) Just as important, Justice Kennedy remains the swing vote on many, probably most, standing questions. And over twenty years ago, in Lujan v. Defenders of Wildlife, he wrote a separate concurrence that stressed Congress's ability to create innovative rights and articulate causal chains that courts might not otherwise accept. As I explain in the essay, if we understand these new regulatory regimes as doing exactly what Justice Kennedy conceived of in Defenders, then there's every reason to expect, both as a matter of legal analysis and Supreme Court prediction, that the Court would accept such injury claims.
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There is an important element of Clapper that is often overlooked. The plaintiffs claimed only that the FISA Amendments, specifically section 1881a, violated their rights. Alito's analysis therefore did not ask whether there was a probability that they were injured by surveillance, but whether there was a probability that they received an injury from the incremental power added by section 1881a beyond original FISA. Both sides pointed to evidence that a particular foreign person had been subject to FISA surveillance in the past (before the amendments). Plaintiffs argued that this showed he was likely to be the target of 1881a surveillance in the future. Alito noted that it showed he would have been subject to surveillance with or without 1881a. So even a very high probability of injury under FISA as a whole would not provide standing to challenge only this one section of the law. This incremental calculation made the question of standing in Clapper much more complicated.
Posted by: Howard Gilbert | Nov 29, 2013 9:27:03 AM