Ideological Plaintiffs, Administrative Lawmaking, Standing and the Petition Clause
Posted: 6 Oct 2008 Last revised: 15 Feb 2009
Date Written: July 7, 2008
Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations - so called "regulatory objects" - enjoy presumed standing to challenge the scope of agency regulations. Groups of individuals benefited by such regulations enjoy no such presumption of "standing," rather, their right to challenge depends on their ability to establish specific "injury in fact," and the "redressibility" of that injury through judicial decree. These "injury in fact" and redressibility requirements are most difficult to establish precisely in the context that underlies the modern regulatory schema; that is, regulation of societal risks such as environmental and consumer risks. These regulations seek to protect the public against harms that may have a low probability of occurrence for any given individual, but pose significant risks for society at large, or even for substantial groups of individual citizens. Courts have wrestled with the concepts of "injury" and "redressibility" in the context of probabilistic harms, and have split on the question of whether individuals, or combinations of individuals, can establish the requisites of justiciability based on low-probability events. Many, if not most, rulemaking challenges by regulatory beneficiaries are brought by public interest organizations. These organizations usually have memberships ranging from thousands to millions of individuals. These organizational plaintiffs fall into the category of "ideological" plaintiffs - parties who invoke the judicial process to establish and enforce public rights for the benefit of many people, who are not primarily motivated by individual gain. Ideological plaintiffs, litigating everything from religion clause issues to consumers' rights to environmental and health concerns, have had mixed success in establishing justiciability in Article III courts. These organizations have been required by Supreme Court doctrine to rely on the individual interests of their members to establish standing.
The traditional test for representative standing requires an organizational party to demonstrate that it has at least one member who would have standing in their own right. Under this approach, no single member of an organization may be able to show a significant "injury" to herself, even though, probabilistically, serious harm to at least one member of a large organization may be nearly certain. This aggregation of the risk of harm lead a DC Circuit panel to reverse itself, and to recognize organizational standing on the part of the Natural Resources Defense Council based on the likelihood that at least two to four of its members would contract skin cancer from exposure to ultraviolet radiation caused by continued use of ozone depleting chemicals, despite the fact that the individual risk for any single member of NRDC was vanishingly small. In such a case the whole of the "injury in fact" may be greater than the sum of the individual parts, and an organization representing thousands or millions of individuals with strong concerns about a regulatory program may well possess the requisite interest in enforcing statutory norms. Literal application of the representational standing requirements, requiring a specific individual member with standing to sue in their own right, would be problematic for such organizations. Although barely recognized by the courts, the Constitution contains a provisions specifically meant to ensure the right of individuals to associate and seek remedies from all branches of the government, including the judicial branch. The First Amendment guarantees the "right of the people peaceably to assemble, and to petition the government for a redress of grievances." Like the First Amendment guarantees of speech and freedom of the press, this constitutional provision is designed to ensure public representation and participation in the lawmaking process. Constitutional jurisprudence likewise has evolved to ensure maximum input to the political processes that lead to legislation. This is particularly true in the area of First Amendment jurisprudence, where the Supreme Court has recognized the functional importance of political speech to a representative democracy.
This article argues for an expanded notion of organizational standing and "injury-in-fact" in judicial review of agency lawmaking action, based on the functional values implicit in the First Amendment right to assembly and petition for redress of grievances. Judge-made standing doctrine should recognize the difference between litigation to enforce individual rights, where inquiries into individual "injury in fact" and the relationship between an organization and its individually-injured members may be appropriate, and regulatory review litigation that is the ultimate step in the lawmaking process, where full airing of competing views is essential to the judicial review function and the dangers to the constitutional assignment of functions is at a minimum.
Keywords: Administrative Law, Constitutional Law, First Amendment, Public Interest Litigation
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