Lexmark v. Static Control: The End of Prudential Standing?
Michael Ramsey

In Tuesday’s Supreme Court decision in Lexmark v. Static Control – largely overlooked amid the Hobby Lobby coverage – Justice Scalia (for a unanimous Court) struck a major blow against the nebulous and ill-grounded doctrine of “prudential standing.”  The case is a federal statutory (Lanham Act) claim for false advertising between two makers of printer ink cartridges; the district court and the court of appeals differed on whether plaintiff Static Control was within the “zone of interest” of the Lanham Act, a question that both courts thought implicated the doctrine of prudential standing.  Justice Scalia set them straight:

The parties’ briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.

From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation­-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). … Lexmark does not deny that Static Control’s allegations of lost sales and damage to its business reputation give it standing under Article III to press its false­advertising claim, and we are satisfied that they do.

Although Static Control’s claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control’s claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court’s obligation to hear and decide” cases within its jurisdiction “is virtually unflagging.” Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) …

In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalizedgrievances more appropriately addressed in the representative branches, and the requirement that a plaintiff ’s complaint fall within the zone of interests protected by thelaw invoked.’” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 12 (2004) …

 … [However,] [w]hether a plaintiff comes within “the zone of interests” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff ’s claim. …

In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.

This is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”

Is Lexmark the end of prudential standing?  Quite possibly.  Justice Scalia added this footnote:

The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff ’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify… This case does not present any issue of third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await another day.

After losing both generalized grievances and zones of interest, prudential standing seems at most to contain limits on third-party-standing, which I think (and Scalia seems here to hint) are properly Article III questions as well.  (Perhaps we can now get this malign and confusing doctrine out of the Constitutional Law casebooks.)

Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.


Statutory Originalism in Hobby Lobby
Chris Green

Mike Ramsey noted a couple of months ago that the Supreme Court has repeatedly and unanimously explained that the touchstone for statutory interpretation was how Congress used the statute's language at the time of enactment: exactly the same approach to statutes that originalists advocate for the Constitution.  I was struck reading the Hobby Lobby transcript from yesterday how deeply originalist Solicitor General Verrilli's argument was. His explanations on behalf of the administration of the task of statutory interpretation repeated a nearly-identical mantra five times:

p. 46: "[T]he relevant question is what did Congress think it was doing when it enacted RFRA in 1993?"

p. 48: "I think the relevant question here is what did Congress think it was doing in 1993?"

p. 51: "[Hobby Lobby's view] would be such a vast expansion of what Congress must could have thought it was doing in 1993, when it enacted RFRA..."

p. 74: "[T]he question here is what Congress thought it was doing in 1993."

pp. 82-83 (Verrilli's  closing): "Congress can't have thought it was authorizing [Hobby Lobby's view] when it enacted RFRA in 1993."

Steven Calabresi & Gary Lawson: The Rule of Law as a Law of Law
Michael Ramsey

Steven G. Calabresi (Northwestern University - School of Law) and Gary Lawson (Boston University School of Law) have posted The Rule of Law as a Law of Law (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution’s implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.


John McGinnis Reviews Richard Epstein's "The Classical Liberal Constitution"
Michael Ramsey

In the Wall Street Journal, John McGinnis reviews The Classical Liberal Constitution.  The full article requires a subscription, but Professor McGinnis discusses it at Liberty Law Blog (including a notable criticism of Epstein on the Second Amendment).

Michael Perry: Abortion
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Abortion on SSRN.  Here is the abstract:

In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.

Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs — Human Rights Watch — has answered in the affirmative.

Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?

Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court — five justices — refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The conclusion I reach in this paper — that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted — is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment — with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court...Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States” — discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. 

A list of the papers is available here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=190495. 

I have also posted a related paper pursuing the implications of the morality of human rights for the American practice of judicial review: http://ssrn.com/abstract= 2383424.


Barnett, Blackman et al.: Does the Privileges or Immunities Clause Protect Economic Rights?
Michael Ramsey

Josh Blackman, Randy Barnett and other leading property and economic rights scholars have filed an amicus brief supporting a grant of certiorari to review a Ninth Circuit decision that denied a claim to use navigable waterways as unprotected by the Slaughter-House Cases.  As the brief describes:  

Yet the Ninth Circuit below refused to recognize even those aspects of the Privileges or Immunities Clause that Slaughter-House retained. Applying the same overarching historical narrative deployed in Slaughter-House to downplay still further the extent to which the Clause was intended to effect any significant change, the Ninth Circuit announced that the rights enumerated in Slaughter-House must be “narrowly construed” when applied to “economic activities.” Courtney v. Goltz, 736 F.3d 1152, 1161 (9th Cir. 2013). The court thus held that the “economic rights protected by” the Clause are “limited to the right of travel,” and that the right to use navigable federal waterways does not include the right to “utilize those waters for a very specific professional ven ture.” Id. at 1160, 1161 & n.5 (internal quotation marks omitted).

Certiorari is warranted to repudiate the Ninth Circuit’s further evisceration of the Privileges or Immunities Clause. The Clause was drafted in response to widespread restrictions of economic liberty, including limitations on the economic activities of former slaves. And the framers of the Clause used language commonly understood to incorporate a long tradition of natural law rights, including the right to pursue a lawful trade. The Ninth Circuit’s removal of economic activity from the scope of the Clause cannot be reconciled with history demonstrating that economic freedom lay at the provision’s core.

(Via Josh Blackman's Blog).  The Brief is signed by Professors Randy Barnett, Josh Blackman, James Ely, Richard Epstein, Christopher Green and Ilya Somin.

Randy Barnett has more here.

It's an interesting well-argued brief -- I reviewed an earlier draft & didn't sign on only because the Fourteenth Amendment isn't my area of expertise.  But it seems right to me.

Katherine Shaw: Constitutional Nondefense in the States
Michael Ramsey

In the current issue of the Columbia Law Review, Katherine Shaw (Cardozo) has the article Constitutional Nondefense in the States (114 Colum. L. Rev. 213).  Here is the abstract:

Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, often find themselves torn between competing obligations to defend statutes, on the one hand, and to maintain fidelity to state and federal constitutions, on the other. This Article takes up the question of how the executive nondefense power is conceived, wielded, and constrained—within what institutional frameworks and with what implications—in the states. Drawing on a number of case studies, the Article sketches an initial taxonomy of approaches to executive nondefense in the states, argues that significant benefits can attach to the practice of nondefense, and provides a set of recommendations for ensuring that when nondefense occurs, its benefits can be realized. Although critics of executive nondefense in the federal system worry that its use threatens to inject partisanship, instability, and uncertainty into the law, the practice in the states, in which nondefense occurs relatively routinely in the context of a variety of institutional design choices, provides a powerful counterpoint to those objections.


James Pfander & Nassim Nazemi: Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793
Michael Ramsey

The article Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793 by James E. Pfander (Northwestern University School of Law) and Nassim Nazemi (Northwestern University School of Law) is now published in the current issue of the Northwestern University Law Review (108 Nw. U. L. Rev. 187 (2014)). A prior draft was posted on SSRN last year and noted on this blog here last May.  Here is the abstract:  

Adopted in 1793, the Anti-Injunction Act (AIA) has come to symbolize the early republic’s concern with protecting state court autonomy from an overbearing federal judiciary. Modern observers view the AIA and its prohibition of injunctions to stay state court proceedings as an absolute barrier to federal interposition. All agree that the origins of the Act were, as the Supreme Court observed, “shrouded in obscurity.”

To remove the shroud, we return to an eighteenth-century world in which separate courts of law and equity exercised concurrent jurisdiction, and courts of equity secured their role through injunctions to stay proceedings at law. One such proceeding unfolded in North Carolina, as founding financier Robert Morris attempted to stay the enforcement of an adverse state court judgment. The language of the AIA was likely drafted to address the specific problem of federal–state concurrency laid bare in that case, Morris v. Allen. By limiting its restriction to “writs of injunction,” the AIA barred original federal interposition but left the federal courts free to issue ancillary stays to protect federal jurisdiction and federal decrees. Reclaiming this lost distinction between original and ancillary injunctive relief calls for a fundamental reconsideration of the place of the 1793 Act in the legislative output of the early republic. Far from the absolute bar that it later became in the hands of twentieth-century jurists such as Felix Frankfurter, the 1793 Act struck a balance that protected state court autonomy even as it authorized federal judicial self- defense.  


Edmund Ursin: Early Incarnations of Legal Pragmatism and Enterprise Liability
Michael Ramsey

Edmund Ursin (University of San Diego School of Law) has posted Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability (San Diego Law Review, Vol. 50, Summer 2013) on SSRN.  Here is the abstract:

Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner.

Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.


David Arkush: The Original Meaning of Recess
Michael Ramsey

David J. Arkush (University of Richmond - School of Law) has posted The Original Meaning of Recess on SSRN.  Here is the abstract:

This Article reevaluates the original meaning of "recess" in the Recess Appointments Clause. The dominant view holds that "recess" refers only to breaks between formal Senate sessions. By identifying new evidence and correcting mistaken interpretations of older evidence, this Article and finds strong support for the view that the Clause uses "recess" in its ordinary, general sense, to mean any time when a legislative body is not conducting business. The Article next considers whether the divergence in views on "recess" can be attributed to methodological differences and finds that explanation improbable. Finally, the Article makes two general points that arise from its analysis: it may be more difficult than is widely appreciated to establish a specialized original meaning, and scholars making originalist claims should provide clear accounts of the scope and limitations of their research.

A well-argued counterpoint to the position taken in Mike Rappaport's 2005 recess appointments article and in the originalist scholars' brief in Noel Canning.

Thanks to Seth Barrett Tillman for the pointer.