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Marc Stevens: Authority; State Without Standing

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  • Legalbear
    Mr. Justice Frankfurter s concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath
    Message 1 of 1 , Dec 31, 2012

      Mr. Justice Frankfurter’s concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 US 123 (1951) contains a virtual brief on “standing”. Some of you are fans of Marc Stevens and have been listening to him teach on the state not having standing in most of their criminal actions. I thought this might help you establish lack of standing in your case:

      Limitation on "the judicial Power of the United States" is expressed by the requirement that a litigant must have "standing to sue" or, more comprehensively, that a federal court may entertain a controversy only if it is "justiciable." Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a "case or controversy." The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. (See the course of decisions beginning with Hayburn's Case, 2 Dall. 409, through Parker v. Los Angeles County, 338 U. S. 327.) These generalities have had myriad applications. Each application, even to a situation not directly pertinent to what 151*151 is before us, reflects considerations relevant to decision here. I shall confine my inquiry, however, by limiting it to suits seeking relief from governmental action.

      (1) The simplest application of the concept of "standing" is to situations in which there is no real controversy between the parties. Regard for the separation of powers, see Muskrat v. United States, 219 U. S. 346, and for the importance to correct decision of adequate presentation of issues by clashing interests, see Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, restricts the courts of the United States to issues presented in an adversary manner. A petitioner does not have standing to sue unless he is "interested in and affected adversely by the decision" of which he seeks review. His "interest must be of a personal and not of an official nature." Braxton County Court v. West Virginia, 208 U. S. 192, 197; see also Massachusetts v. Mellon, 262 U. S. 447. The interest must not be wholly negligible, as that of a taxpayer of the Federal Government is considered to be, Frothingham v. Mellon, 262 U. S. 447; cf. Crampton v. Zabriskie, 101 U. S. 601. A litigant must show more than that "he suffers in some indefinite way in common with people generally." Frothingham v. Mellon, supra, at 488.

      Adverse personal interest, even of such an indirect sort as arises from competition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests. Federal Communications Comm'n v. Sanders Radio Station, 309 U. S. 470; cf. Interstate Commerce Comm'n v. Oregon-Washington R. Co., 288 U. S. 14.

      (2) To require a court to intervene in the absence of a statute, however, either on constitutional grounds or in the exercise of inherent equitable powers, something more than adverse personal interest is needed. This additional element is usually defined in terms which assume the answer 152*152 It is said that the injury must be "a wrong which directly results in the violation of a legal right." Alabama Power Co. v. Ickes, 302 U. S. 464, 479. Or that the controversy "must be definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, supra, 300 U. S. at 240-241. These terms have meaning only when contained by the facts to which they have been applied. In seeking to determine whether in the case before us the standards they reflect are met, therefore, we must go to the decisions. They show that the existence of "legal" injury has turned on the answer to one or more of these questions: (a) Will the action challenged at any time substantially affect the "legal" interests of any person? (b) Does the action challenged affect the petitioner with sufficient "directness"? (c) Is the action challenged sufficiently "final"? Since each of these questions itself contains a word of art, we must look to experience to find their meaning.

      (a) Will the action challenged at any time substantially affect the "legal" interests of any person? A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. United States v. Lee, 106 U. S. 196.[1] Or standing may be based on an interest created by the Constitution or a statute. E. g., Parker v. Fleming, 329 U. S. 531; Coleman v. Miller, 307 U. S. 433; cf. Bell v. Hood, 327 U. S. 678. But if no comparable common-law right exists and no such constitutional or statutory interest has been created, relief is not available judicially. Thus, at least unless capricious discrimination is asserted, there is no protected interest in contracting with the Government. A litigant therefore has no standing 153*153 to object that an official has misinterpreted his instructions in requiring a particular clause to be included in a contract. Perkins v. Lukens Steel Co., 310 U. S. 113. Similarly, a determination whether the Government is within its powers in distributing electric power may be of enormous financial consequence to a private power company, but it has no standing to raise the issue. Tennessee Power Co. v. T. V. A., 306 U. S. 118; cf. Alabama Power Co. v. Ickes, 302 U. S. 464. The common law does not recognize an interest in freedom from honest competition; a court will give protection from competition by the Government, therefore, only when the Constitution or a statute creates such a right.

      (b) Does the action challenged affect petitioner with sufficient "directness"? Frequently governmental action directly affects the legal interests of some person, and causes only a consequential detriment to another. Whether the person consequentially harmed can challenge the action is said to depend on the "directness" of the impact of the action on him. A shipper has no standing to attack a rate not applicable to him but merely affecting his previous competitive advantage over shippers subject to the rate. Hines Trustees v. United States, 263 U. S. 143, 148; Sprunt & Son v. United States, 281 U. S. 249, 255, 257. When those consequentially affected may resort to an administrative agency charged with their protection, courts are especially reluctant to give them "standing" to claim judicial review. See Atlanta v. Ickes, 308 U. S. 517; cf. Associated Industries v. Ickes, 134 F. 2d 694.[2]

      154*154 But it is not always true that only the person immediately affected can challenge the action. The fact that an advantageous relationship is terminable at will does not prevent a litigant from asserting that improper interference with it gives him "standing" to assert a right of action. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. On this principle an alien employee was allowed to challenge a State law requiring his employer to discharge all but a specified proportion of alien employees, Truax v. Raich, 239 U. S. 33, and a private school to enjoin enforcement of a statute requiring parents to send their children to public schools, Pierce v. Society of Sisters, 268 U. S. 510. The likelihood that the interests of the petitioner will be adequately protected by the person directly affected is a relevant consideration, compare Columbia System v. United States, 316 U. S. 407, 423-424, with Schenley Corp. v. United States, 326 U. S. 432, 435, as is, probably, the nature of the relationship involved. See Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 220; Truax v. Raich, 239 U. S. 33, 38-39.[3]

      (c) Is the action challenged sufficiently final? Although a litigant is the person most directly affected by the challenged action of the Government, he may not have "standing" to raise his objections in a court if the action has not, as it were, come to rest.[4] Courts do not 155*155 review issues, especially constitutional issues, until they have to. See Parker v. Los Angeles County, supra, and see Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341. In part, this practice reflects the tradition that courts, having final power, can exercise it most wisely by restricting themselves to situations in which decision is necessary. In part, it is founded on the practical wisdom of not coming prematurely or needlessly in conflict with the executive or legislature. See Rochester Tel. Corp. v. United States, 307 U. S. 125, 130-131. Controversies, therefore, are often held nonjusticiable "[w]here the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, but only if some further action is taken by the Commission." Rochester Tel. Corp. v. United States, supra, at 129; and see Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U. S. 103. There is no "standing" to challenge a preliminary administrative determination, although the determination itself causes some detriment to the litigant. United States v. Los Angeles & S. L. R. Co., 273 U. S. 299; cf. Ex parte Williams, 277 U. S. 267. Nor does the reservation of authority to act to a petitioner's detriment entitle him to challenge the reservation when it is conceded that the authority will be exercised only on a contingency which appears not be imminent. Eccles v. Peoples Bank, 333 U. S. 426. Lack of finality also explains the decision in Standard Scale Co. v. Farrell, 249 U. S. 571. There the Court was faced by an advisory "specification" of characteristics desirable in ordinary measuring scales. The specification could be enforced only by independent local officers' withholding their approval of the equipment. Justiciability was denied.[5]

      156*156 "Finality" is not, however, a principle inflexibly applied. If the ultimate impact of the challenged action on the petitioner is sufficiently probable and not too distant, and if the procedure by which that ultimate action may be questioned is too onerous or hazardous, "standing" is given to challenge the action at a preliminary stage. Terrace v. Thompson, 263 U. S. 197; Santa Fe Pac. R. Co. v. Lane, 244 U. S. 492; see Waite v. Macy, 246 U. S. 606. It is well settled that equity will enjoin enforcement of criminal statutes found to be unconstitutional "when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked." E. g., Philadelphia Co. v. Stimson, 223 U. S. 605, 621.[6] And if the determination challenged creates a status which enforces a course of conduct through penal sanctions, a litigant need not subject himself to the penalties to challenge the determination. La Crosse Tel. Corp. v. Wisconsin Board, 336 U. S. 18; Shields v. Utah Idaho R. Co., 305 U. S. 177.

      (3) Whether "justiciability" exists, therefore, has most often turned on evaluating both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief. This explains the inference to be drawn from the cases that "standing" to challenge official action is more apt to exist when that action is not within the scope of official authority than when the objection to the administrative decision goes only to its correctness. See United States v. Los Angeles & S. L. R. Co., 273 U. S. 299, 314-315; Pennsylvania R. Co. v. Labor Board, 261 157*157 U. S. 72; Ex parte Williams, 277 U. S. 267, 271.[7] The objection to judicial restraint of an unauthorized exercise of powers is not weighty.[8]



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