Brannon P. Denning

Zone-of-Interests Standing in Constitutional Cases after Lexmark

In addition to satisfying Article III’s standing requirements, the U.S. Supreme Court has long included, as one of its non-constitutional “prudential” standing rules, a requirement that plaintiffs demonstrate that their claim is within the “zone of interests” protected by a statute or constitutional provision. In a recent case, Lexmark International, Inc. v. Static Control Components, Inc., the Court disavowed zone-of-interests standing in statutory cases. After Lexmark, courts need only determine whether a particular statute authorizes a plaintiff’s cause of action. If it does, the Court held, then courts are not free to prevent a plaintiff from bringing a claim out of prudential concerns. This paper asks whether zone-of-interests standing should be retained in constitutional cases, an issue not before the Court in Lexmark. We conclude that it should not be; the Court should pursue Lexmark to its logical conclusion and eliminate zone-of-interests standing entirely. After charting the course of the zone of interests test in statutory cases from its inception to the Court’s disavowal of it in Lexmark, we examine the role it has played in constitutional cases in the Supreme Court and in the lower courts. We argue that (1) zone-of-interests standing rests on a constitutionally-dubious foundation; (2) existing doctrines better perform whatever useful functions the test was thought to serve; and (3) that the practical difficulties that bedeviled the Court’s application of the test in statutory cases remain and multiply in constitutional cases. We also consider, but reject, arguments that the test is useful for preventing courts from being flooded with certain constitutional claims or that it ought to be retained, but only for a few constitutional claims, like dormant Commerce Clause challenges.

ANTI-EVASION DOCTRINES IN CONSTITUTIONAL LAW

Recent constitutional scholarship has focused on how courts — the Supreme Court in particular — “implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision making — strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts — usually designed as standards, as opposed to rules — that supplement other doctrines (designed as rules) to implement particular constitutional principles.AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles — by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “when authorized to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously.

Anti-Anti-Evasion in Constitutional Law

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their function in optimizing constitutional enforcement is likely worth the costs they impose.But the Court’s use of AEDs is not foreordained. In notable areas of constitutional doctrine, the Court has declined to create AEDs in situations that seemingly invite it to do so. This paper addresses this phenomenon, which we term “anti-anti-evasion,” and seeks to understand why the Court employs AEDs in some contexts but not in others. After furnishing a number of examples of anti-anti-evasion, we identify and evaluate the reasons the Court gives for declining to create AEDs. Because these reasons do not tell the whole story, we also pose a working hypothesis – i.e., the Court will not create AEDs where it believes that the constitutional principle is adequately protected by robust political safeguards, and this occurs primarily in cases involving taxing or spending decisions, including the provision of government-subsidized goods and services. Support for this hypothesis is found in a number of the Court’s AED and anti-anti-evasion decisions, including the much-awaited decision in National Federation of Independent Business v. Sebelius.Apart from academic curiosity, the hypothesis (if correct) has broader implications. First, it helps to demonstrate that the formulation of constitutional doctrine is a type of risk regulation where the Court employs decision rules in an effort to achieve optimal (as opposed to maximal) protections. Second, it expands on earlier work by other scholars that considered possible reasons for why the Court might choose one set of decision rules over another, thereby contributing to the ongoing effort to describe accurately what courts actually do when they decide cases. Third, our hypothesis hopefully will encourage the Justices to be more intentional in selecting among available decision rules, and perhaps more transparent in the reasoning behind the adoption of one set over others. Finally, our hypothesis should prove useful to practicing lawyers in crafting constitutional arguments.