Revisiting Article III standing
On June 13, 2024, a unanimous Supreme Court of the United States took the opportunity to revisit Article III standing and try to abolish association standing. FDA v. All. for Hippocratic Med., Nos. 23-235, 23-236, 2024 U.S. LEXIS 2604 (June 13, 2024)
Justice Kavanagh and Justice Thomas in his independent concurring opinion all but eliminated “standing” for groups of individuals to address public issues in the federal Courts.
Association standing
“Association” or “representative” standing has been the cornerstone of much modern civil rights and environmental litigation. It was established in Norwalk CORE et al. v. Norwalk Redevelopment Agency et al., 395 F.2d 920 (2d Cir. 1968) and been the law for more than fifty years.
Association standing permits organizations to bring actions on behalf of their members for violations of Constitutional rights. Although the rights asserted are specific to all members of the Association, individual members need not be named. All that is required are allegations of concrete and particularized damages specific to each member of the class that are actual or imminent, not conjectural or hypothetical.
Those damages must be “fairly traceable to the challenged action of the defendant.” In addition it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Those facts are deemed sufficient to meet the “injury-in-fact” requirement for standing. Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167 (2000).
In considering challenges to association standing, the Supreme Court has emphasized the need for a concrete and particularized injury to the members and the members’ interests must be aligned with the organization’s purpose. Association standing requires that the members would have standing to sue in their own right. However, n
either the claim asserted nor the relief requested should require participation by individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977).
The end of “nickel and dime” class actions
For practical purposes, the Supreme Court has sounded the death knell for many class actions for money damages. The federal Courts are no longer open to actions where the economic special damages of each individual member of the class are less than the jurisdictional threshold. This should not be a hardship for the plaintiffs in those cases, however, because only the attorneys are really well compensated in those actions. The special damages of each class member may be only pennies or a few dollars.
Justice Thomas took the position that the proper function of the Supreme Court is only to decide “cases and controversies” between individual plaintiffs and defendants who the plaintiffs claim caused them injury and damage. That is the way the American judicial system generally works.
Association standing is necessary in public interest litigation
The needs of the American People were supposed to be addressed on a national level by the Congress. That was the lofty goal of the founders of this country who wrote the Constitution. Many of those needs are still unmet. Consider the recent decision in the “bump stock” case, Garland v. Cargill, 599 U.S. ___ (2024). In most cases, Congress ignores the problem if it can, or looks to the Supreme Court to decide the issue. Anything to allow Congress to avoid responsibility for making what might be an unpopular decision.
Justice Thomas believes that the federal Courts are not supposed to do the work which the Constitution assigned to Congress. However, Justice Thomas seems to forget that even under his strict construction of Article III of the Constitution, the federal Courts have all the equity powers the English Chancellors had at the time the Constitution of the United States was adopted in 1796. When Congress fails to meet the needs of the American People through legislation, it is sometimes necessary for the federal Courts to utilize their equity powers to declare rights and fashion appropriate remedies.
What kind of Association standing should remain
Association and representative litigation should be limited to declaratory judgment actions seeking equitable relief. Actions for money damages should remain cases between individual parties claiming individual damages. If there are a large number of similar cases for money damages, the federal Courts have the power to consolidate the cases for consideration of common pretrial issues under existing Multi-District Litigation (MDL) practices. When the common issues have been decided, the individual cases can be bifurcated. Then the liability issues which are common to every case can be tried in the MDL Court. If liability is established, individual claims for damages can be tried in their originating Courts.
NEPA and environmental litigation
The Environmental Movement which grew out of the DDT wars of the late 1960s, the Florissant Fossil Beds litigation, and the action to stop the Cross-Florida Barge Canal came to an abrupt end with the passage of the National Environmental Policy Act (NEPA). The Environmental Defense Fund abandoned its commitment to direct legal action based on classic principles of equity jurisprudence supported by substantial credible scientific evidence of imminent danger of serious, permanent, and irreparable damage to national natural resource treasures such as the Florissant Fossil Beds and the Oklawaha River or the “Environment” such as the Missoula Montana Regional Airshed. It quickly transitioned to a fundraising-organization promoting attacks on administrative agencies for alleged technical violations of NEPA and using the claims of legal action to raise funds.
Other newly minted “environmental” organizations quickly followed suit. These organizations failed to challenge actions which damaged natural resources and the environment on the merits. Instead, they sought to compel federal agencies to do the work for them. This only increased the power of the individual federal agencies, particularly the Environmental Protection Agency (EPA) resulting in the growth of the Administrative State — a Fourth Branch of the federal government unimagined by the founders. .
Dismantling the Administrative State
The so-called “conservative” majority of Justices on this Supreme Court of United States are beginning the necessary and long overdue dismantling of the Administrative State and calling for a return to the founders’ original tripartite concept of federalism.
There is nothing for Americans to fear from returning power to their elected representatives in the Congress. It is time to stop allowing bureaucrats in federal agencies to run the Country. These bureaucrats have no responsibility for the effects of their actions and are unaccountable to the American people because of the Civil Service system.
Ask the members of Congress to do their job
Ask your elected representatives in the Congress to actually consider, debate, and promulgate legislation. Do not let them defer to a bureaucracy which is not accountable to the People as they are.
Asking elected representatives to do the job for which they were elected is no more than asking them to meet the reasonable expectations of the people who elected them. Of course, their motives and motivation for running as candidates for Congress or the Senate might not be to present, debate, and pass legislation that will improve the quality of life in America. They may not remember that their legislative efforts are supposed to “establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty” to Americans today and to our “posterity.” If that is the case, the Supreme Court of the United States should step in and tell them in no uncertain terms that is the job they were elected to do.