Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III's Case-or-Controversy by James Pfander of Northwestern University Law School. Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties. (While Pfander’s paper is not yet available online, a longer related paper is.)
One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship. The government was not a party to the proceeding. According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness. It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government. He is simply applying for it in court. It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship. The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.
Pfander also argues that early statements support this understanding. He argues that Chief Justice Marshall and Justice Story understood the constitutional term “case” not to require injury in fact or adverseness, but instead merely to require conformity to legal forms. Pfander claims that the terms case and controversy in the Constitution actually have different meanings. Case is broader referring to all actions that conform to legal forms; controversy requires that their be adversity between the parties.
Pfander’s argument is powerful and provides additional evidence that the modern Supreme Court’s standing doctrine does not conform to the original meaning of the Constitution.
The commentator on the paper was Caleb Nelson of the University of Virginia Law School, the co-author of one of the leading papers on standing, and one of the best originalist scholars in the country. Nelson agreed that Pfander’s evidence cast doubt on the modern Supreme Court’s standing doctrine. But Nelson sought to read the evidence more narrowly than Pfander did.
Nelson argued that the injury in fact requirement should be modified to be something of a litigable interest requirement. For example, the applicant for citizenship had a concrete interest, even though he was not injured. And Nelson argued that there was still adverseness; the Congress had simply waived its right to contest the application. I agree with Nelson about the first point. The second sounds like a bit of a stretch, but perhaps it works.
In the end, though, Pfander’s analysis provides significant evidence that our standing rules are too strict. It would be interesting to ask how administrative law would be changed if this rule was accepted. Under this rule, for example, Congress could require that persons who seek benefits go into court to get them. In this way, even if other parties did not have standing to challenge the conferral of benefits, a court would still have to approve their provision.
(Cross posted at the Liberty Law Blog)