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.