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Article III Standing and the Schumer Bill (Analysis)

Lyle’s post on Friday about Senator Schumer’s new bill — which would create a new cause of action for certain plaintiffs to challenge the legality of the NSA’s warrantless electronic surveillance program — and a similar post of David Barron’s, have generated extensive discussion in their respective comments sections concerning whether plaintiffs suing under the Schumer bill would have Article III standing.

As I explain in a recent post, the Schumer bill, S.2468 — which I consider the most important of the various proposed legislative responses to the presidentially authorized surveillance program — would create a cause of action that could be brought by a U.S. citizen “who has refrained or will refrain from wire communications because of a reasonable fear that such communications will be the subject of electronic surveillance conducted without an order issued in accordance with title I of the Foreign Intelligence Surveillance Act of 1978.”

On the question of whether a plaintiff would have Article III standing, I recommend this earlier post of David Barron’s, and Sam Bagenstos’s post in the comments there. As with so many other important legal questions bearing on the current war against Al Qaeda, Justice Kennedy’s views would almost certainly carry the day, and his separate opinion in Lujan, together with the majority opinion in Akins, strongly points in the direction of Article III standing for a plaintiff making the requisite allegations under the Schumer bill.

I won’t belabor the question here — Professors Barron and Bagenstos cover the territory in much greater detail, as does an “anonymous professor” in the comments to Barron’s latest post — except to respond briefly to one point of possible confusion: Several commenters have asked what the plaintiff’s actual injury would be. If I’m not mistaken, actual injury would not be a seriously contested issue. The injury would not be merely the plaintiff’s belief that the government is acting unlawfully, nor even that the plaintiff has a “reasonable fear” that her communications are being overheard. The injury would be, quite simply, that the plaintiff does not make wire communications she otherwise would have made because of a reasonable fear that such communications will be the subject of unlawful electronic surveillance. An actual chill on speech, in other words, is the injury — indeed, such a chill would have to be specifically alleged, which would satisfy the requirement Justice Kennedy articulated in Lujan that “the party bringing suit must show that the action injures him in a concrete and personal way.”

Whether that injury is sufficient for purposes of article III depends on whether the Court would follow the lead of the Kennedy concurrence in Lujan (the showing of injury must “preserve[] the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome”), and the Court’s more recent precedents, such as Akins and Laidlaw. But the fact that government conduct — the conceded existence of an extensive non-FISA-compliant electronic surveillance program that intercepts many communications of U.S. persons — causes a plaintiff to refrain from wire communications that she would otherwise make surely establishes an actual injury.