The First of Many Expected Five-Four Rulings at the Supreme Court this Term: Clapper v. Amnesty International USA Rejects Plaintiffs’ Standing to Challenge Foreign Surveillance


The Supreme Court this week handed down its first (but almost certainly not its last) 5-4 ruling of the Term.  The case, Clapper v. Amnesty International USA, involved a constitutional challenge to a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information gathering with respect to persons outside the United States.  Because the five-member Court majority found that the plaintiffs lacked standing under Article III of the Constitution to mount the challenge, the Court never addressed the validity of Congress’s law.  But the case does, as I explain below, afford some insights into the law of standing, which continues to be an important doctrine with which anyone seeking to a raise constitutional challenge must reckon.

The Background of the Case and the Supreme Court’s Reasoning

In 1978, Congress passed the Foreign Surveillance Intelligence Act (FISA) to allow and to regulate certain electronic surveillance activities conducted by the federal government to gather foreign intelligence.  The statute set up certain procedures and certain tribunals through which the federal government has to go in order to be allowed to monitor and intercept electronic communications involving persons outside the United States.  Congress amended the FISA in 2008, adding to it a “new and independent source of intelligence collection authority, beyond that granted in the original FISA.”  The new authority came with limits, however: (1) the government must still obtain approval from a FISA court; (2) it must avoid targeting persons known to be in the U.S.; and (3) it must comply with the Fourth Amendment.

The day the 2008 amendments were made law, a group of plaintiffs filed suit seeking to block one of the new provisions on the ground that it violates the First Amendment, the Fourth Amendment, and various separation-of-powers principles.  The plaintiffs consist of lawyers, labor organizations, media groups and human rights advocates.  They say that they are injured by the 2008 law because their work requires that they undertake sensitive and sometimes private electronic communications with colleagues and other individuals located outside the United States.  The plaintiffs allege that some of the people with whom they need to communicate will likely be the target of federal intelligence-gathering activities under the FISA amendments, and that, as a result, the plaintiffs’ own communications will be improperly monitored or intercepted.  For this reason, plaintiffs say, the new law impedes their ability to do their work.  Indeed, plaintiffs assert, they have already ceased engaging in certain electronic communications because of a reasonable fear that these communications may be surveilled.

The federal district court ruled that the plaintiffs lacked standing to bring the suit.  The United States Court of Appeals for the Second Circuit reversed the district court, concluding that since the plaintiffs had shown an “objectively reasonable likelihood that their communications will be intercepted at some time in the future,” their claims should be adjudicated on the merits.  But five Justices of the Supreme Court disagreed.

Justice Alito, writing for himself, Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas, observed that, to have standing to sue in federal court under Article III of the Constitution, a plaintiff must suffer suffer a concrete and particularized injury that is “actual or imminent” and “fairly traceable” to the challenged action.  To be “actual or imminent,” the majority said, the injury asserted must be “certainly impending.”  On the facts established, the majority reasoned, this standard was not satisfied, because there was too much uncertainty about whether the new provisions of FISA would ever end up subjecting the plaintiffs and their particular communications to any surveillance.  In particular, Justice Alito’s opinion argued, there was uncertainty as to: (1) whether the feds will ever target any of the particular non-U.S. persons with whom the plaintiffs communicate; (2) if the feds do target persons with whom the plaintiffs communicate, whether the feds will invoke the new FISA provisions (as distinguished from other possible legal bases); (3) whether, if the feds do invoke the new law, the FISA court will give its approval; (4) whether, if FISA court approval is given, the feds will succeed in monitoring or intercepting any communications (no mean feat technologically); and (5) whether, if the government does intercept any communications, the plaintiffs will happen to be parties to those particular communications.

Because of this “highly attenuated chain of possibilities,” said the majority, the plaintiffs’ claim that they will be injured because of the new FISA law is too speculative to afford them standing.  And as to the fact that plaintiffs say that they are already changing their practices today because of their non-paranoid fear of surveillance, the Court responded that such decisions were the choice of the plaintiffs themselves, and that they could not “manufacture” an injury that satisfies standing in circumstances where the government itself has not created an injury that is “certainly impending.”

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor and Kagan, argued that the plaintiffs’ injuries are not speculative given what “commonsense inference and ordinary knowledge of human nature tell us will happen.”  In particular, against the backdrop of the government’s track record, and in light of the fact that the government has the motive and (in light of the 2008 revisions) also the means to surveil the very non-U.S. communication partners with whom the plaintiffs communicate (some of whom are suspected of terrorism), the dissent found a “very high likelihood” that the plaintiffs would suffer injury.  And because the future always contains some uncertainty (such that metaphysical certainty cannot be the standard), a high likelihood of injury should satisfy the “certainly impending” or “imminent” standard.  Justice Breyer also asserted that the Court had, in many earlier cases, found standing to exist where the relevant injury was “far less certain” than it is in the present case.

The Lessons About Standing to Be Gleaned From Clapper

Clapper highlights many aspects of modern standing doctrine.  First, standing can be contentious and standing battles often have an ideological element.  Notice, here, that the Court not only divided five to four, but did so on the conventional “conservative/liberal (or moderate)” fault line.  In general, the Justices who tend to be more conservative in their approach to interpreting other aspects of the Constitution are also more conservative in construing the barriers that Article III imposes for people who wish to challenge government action.  By contrast, the less conservative Justices tend to be more generous when it comes to access to federal courts.  (To be sure, because standing doctrine is somewhat manipulable and can be used by various Justices for various reasons, this conservative-liberal breakdown does not always account for votes on standing.)

Second, Clapper illuminates two distinct but sometimes conflated aspects of the “imminent” injury standard.  Some might be inclined to think terms like “imminent” and “impending” are temporal in nature, and require that the alleged injury must be suffered in the immediate future.  But what is really important in standing is not when the injury will be incurred, but whether it will be incurred at all.  (Remember, for instance, the Affordable Care Act case, in which the challenged individual mandate would not take effect until 2014, and yet standing was not a barrier.)  The temporal dimension is not irrelevant; temporal distance can create more uncertainty about whether the alleged harm will in fact ever come about, because the longer the time between the present moment and the alleged moment of actual injury, the greater the opportunity for circumstances to change in a way that avoids the injury.  But the question ultimately is still how likely the injury is to be incurred, taking into account any time lag.  (For example, the fact that Congress could conceivably have repealed the Affordable Care Act after the 2012 election before the individual mandate kicked in did not incline the Court to deny standing in the summer of 2012.)

Third, a Justice’s assessment of uncertainty depends, as Justice Breyer points out, on how the Justice understands what “commonsense inference and ordinary knowledge of human nature tell us [about what] will happen.”  Predictions (and that’s what we’re talking about here) are always based on how one perceives and understands how the world and the actors in it operate.

Fourth, the predictions required in standing analysis are more complicated when they involve the actions of persons other than the plaintiff and the defendant.  In Clapper, for example, we need to predict not only what kinds of communications the plaintiffs actually plan to undertake and how aggressive the government will be in seeking to monitor them, but we also need to predict how permissive the FISA court will be, and how effective the technology experts will be in any surveillance that is authorized.  The presence of these third parties (the courts and the technology intermediaries) allows the various Justices to come out very differently on the bottom-line question of whether plaintiffs will be affected.

Fifth, standing analysis may tend to play out differently in different subject-matter contexts.  Justice Alito pointed out that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of political branches in the fields of intelligence gathering and foreign affairs.”  By contrast, many of the cases Justice Breyer adduced to show that standing was found even though there seemed to be some uncertainty about future events involved land-use and environmental effects. (For example, in one decision, standing was found to challenge the planned construction of a nuclear power plant, even though the ultimate completion of the plant and its environmental effects were not certain to occur.)

There may be a number of explanations for why standing analysis generates different results in different settings.  Perhaps the disinclination to find standing in foreign affairs cases reflects a kinship between standing doctrine and so-called “political question” doctrine (in which federal courts affirmatively decide to stay out of certain kinds of disputes, leaving them to the political branches, because judicial resolution would create distinctive problems of institutional usurpation, embarrassment, or confusion.)  Foreign affairs effects (unlike environmental effects) are often invoked in “political question” settings.  Or perhaps the ease with which standing can be obtained in land-use and environmental cases reflects the fact that there is a market value attached to real property.  As a result, we might be able to discern present-day injuries from (even uncertain) future events because the mere non-trivial possibility of those events can be shown to have implications for current property valuations.  There is no market for privacy rights the way there is for land; for that reason, it may be harder to convince a court to step in to protect those rights when the threat to them is serious but subject to meaningful uncertainty.

Sixth, Clapper reminds us that sometimes the Court’s denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits.  Justice Alito’s opinion repeats a line from an earlier case saying that the fact that if plaintiff lacks standing then no one has standing is not a reason to recognize standing.  And although Justice Alito adds that persons who are prosecuted using information gleaned by the 2008 FISA amendments may be able to challenge those new laws down the road, critics of America’s response to terrorism seem to think that such opportunities to have a court rule on the validity of the surveillance are unlikely to materialize.

Finally, Clapper shows that standing doctrine is very soft, and that the Court’s cases cannot easily be harmonized or lined up on any clear spectrum.  As Justice Breyer concedes, “the Court has recognized that the precise boundaries of [standing doctrine] are matters of ‘degree. . . not discernible by any precise test.’”  What this means is that we can continue to expect the Court to use standing as a device to regulate its docket and reach, or avoid, questions on the merits that it would rather, or rather not, decide.  We may see more of that this Term in the same-sex marriage cases, where the specific standing questions are different, but the flexibility of the standing doctrine is similar.

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