The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.