U.S. Constitutional Law I(D)
Current Assignments
Spring 2026
 



Assignments for the week of February 16:

  • Tuesday, February 17: We will complete our discussion of the material in Section II.C.2.b.ii.a (Lujan v. Defenders of Wildlife) (questions here), and then move on to Sections II.C.2.b.ii.b (Mass. v. EPA), II.C.2.b.ii.c (Clapper), II.C.2.b.iii.a (Historical Development), and II.C.2.b.iii.b (Nexus/Conceptualizing Injury).

    With respect to Section II.C.2.b.ii.b (Mass. v. EPA), consider:

    • What was underlying claim on the merits in Massachusetts v. EPA? Do you think the EPA correctly interpreted the Clean Air Act? Should the Court give special deference to the interpretation that the EPA gives to an environmental statute Congress has charged it with administering? Should the Court give an agency like the EPA, whose administrator serves at the pleasure of the president, less deference than an agency whose administrator(s) can be removed only for cause?
    • Was the Court correct that Massachusetts should not be treated like an ordinary private plaintiff for purposes of standing? Why or why not?
    • What if the only plaintiff were not Massachusetts, but a private landowner who owned some land on the Massachusetts coast?
    • Was the Court wrong to reject the EPA’s argument that global warming is complex and should be left to the political process? How would that consideration relate to standing, including the aim of ensuring that the litigant has a stake in the litigation sufficient to ensure vigorous advocacy? Had the political branches already addressed one aspect of global warming? What aspect?
    • After the Court’s ruling, the EPA made two findings in 2009, which became effective in 2010: (1) that “greenhouse gases ... in the atmosphere threaten the public health and welfare of current and future generations, ” and (2) that “the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare.” See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.
    • These findings were overturned by the Trump administraton on February 12, 2026, along with all federal greenhouse gas regulations of vehicles and engines. See President Trump and Administrator Zeldin Deliver Single Largest Deregulatory Action in U.S. History.

    With respect to Section II.C.2.b.ii.c (Clapper v. Amnesty International USA):

    • In Clapper, what specific activities of plaintiffs Scott McKay and Joanne Mariner led them to believe that there was an “objectively reasonable likelihood” that communications to which they were parties would be intercepted and monitored by the government, pursuant to Section 702 of FISA (50 U.S.C. § 1881a)?
    • Suppose the government did want to monitor communications to which McKay or Mariner might be a party. What legal requirements would it have to meet in order to do so?
    • Based on the factual allegations, how likely is it in your view that if the government did seek to intercept such communications, it would do so under the authority of § 1881a as opposed to some other legal authority? Why should this matter to standing?
    • The majority holds not only that plaintiffs were incorrect to conclude that there was an “objectively reasonable likelihood” that communications to which they were parties would be monitored, but that (for purposes of standing law, at any rate), the prospect was “highly speculative.” What specifically made it so speculative, according to the Court? Is “highly speculative” the same as something not being “certainly impending”? Does the Court treat them as being the same?
    • Make sure you can describe the second asserted basis for standing -- a basis the majority treats as an instance of a plaintiff attempting to “manufacture” standing. Do you agree with the majority’s characterization? What does Justice Breyer say in reply?
    • What does Justice Breyer say about whether Clapper is consistent with the Court’s earlier holdings? Do you agree or disagree with his assertions?
    • Should any of the following matter to your conclusion about standing in this case:
      • The fact that the FISA court operates in secrecy and hears only the government’s side, and that its opinions are classified?
      • The possibility that since the monitoring is done in complete secrecy, no one will be able to establish definitively (at least without Edward Snowden’s help) that they are being monitored, and so no one might have the opportunity to establish standing to bring a challenge to the monitoring?
      • The fact that in testimony to the Senate in March 2013, NSA Director James Clapper gave the following answers to questions by Senator Ron Wyden of Oregon:

          WYDEN: ... Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
          CLAPPER: No, sir.
          WYDEN: It does not?
          CLAPPER: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.

        For background (optional) see Bill Chappell, Clapper Apologizes for Answer on NSA’s Data Collection, NPR, July 2, 2013.

    • The Clapper v. Amnesty International majority states that “if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition” (CB 96, ¶ 3 in Section B). How is this relevant to standing in this case? Does it fully satisfy concerns about the availability of judicial review? How might it not?

    • Subsequent developments (optional):

      • It turned out that the government was not providing such notice to defendants, and had failed to do so repeatedly. The DOJ then announced that it would do so in the future.
      • After the Edward Snowden revelations, Congress ended the bulk metadata collection of telephone information, though the NSA continues to collect data in other forms. See POGO, The History and Future of Mass Metadata Surveillance, June 11, 2019.

    With respect to Sections II.C.2.b.iii.a (Historical Development) and II.C.2.b.iii.b (Nexus/Conceptualizing Injury), consider:

    • What was a “legal injury” in the earlier era of standing doctrine? How did the requirement of a legal injury help reduce the occasions for judicial review of New Deal legislation (from around 1937 on)? In considering this, note the difference between a challenge by someone who is the object of government regulation versus a challenge by someone who is intended beneficiary of government regulation.
    • How was the understanding of “legal injury” first expanded in the 1960s and 1970s? Was the replacement of “legal injury” with “injury in fact” intended by the Court to constrict standing, or expand it? Was Association of Data Processing Services Organizations v. Camp (CB 116) grounded in the Constitution? Or statute?
    • Are Sierra Club and SCRAP consistent? What is your view as to whether they were correctly decided?

    Section II.C.2.b.iii.b (The Nexus Requirement/Conceptualizing Injury):

    • Consider the differing ways in which injury is conceptualized in (a) Bakke (CB 113), Northeastern Florida Chapter of Associated General Contractors (CB 113), and Gratz (CB 114), on the one hand, and (b) Linda R.S. (CB 112), EKWRO (CB 112), on the other hand, and between Steel Company and Laidlaw (CB 114). To get a sense of how these cases differ, suppose that the standing issue in Linda R.S or EKWRO had been decided using the approach in Bakke or Northeastern Florida Chapter of Associated General Contractors. How much restraint does standing doctrine in fact impose on the courts?

  • Thursday, February 19: We will discuss the material in Sections II.C.2.b.iii.c through II.C.2.b.iii.g.

    Section II.C.2.b.iii.c (Procedural Violations):

    • Spokeo is often described as a case involving a “procedural” injury, which is not a very enlightening description. Make sure you understand in very concrete terms how the private credit reporting agency’s (CRA) failure to ensure that the information it had compiled on him (and which it made available to others) harmed him. Conider the following ways that someone might might claim injury:
      • The CRA has his zip code wrong.
      • The CRA has his zip code wrong, and some mail sent to him is misdirected, and sometimes is never delivered.
      • The CRA lists him as having educational degrees he never earned; or leaves out educational degrees he did learn. Or it lists his income as higher (or lower) than it really is. As a result, he isn’t hired for a job he applied for.
    • Suppose Equifax, a major CRA, suffers a massive breach of security. Its files contain lots of sensitive financial information pertaining to individuals’ finances. Would A have standing? Would B? Could Congress, by statute, define the kind of harm claimed by B to be an injury for standing purposes?
      • A brings suit against Equifax, alleging that she has suffered identify theft as a result of the breach, with the result that her bank account was emptied out by the group that breached Equifax’s security.
      • B brings suit against Equifax, alleging that the breach puts him at significant risk of identify theft.

    Section II.C.2.b.iii.d (Threatened Injury):

    • As Lyons shows, a plaintiff may have standing to assert a claim for damages, but no standing to seek an injunction against future injury of the same sort.
    • Assume that an individual has been subject to a police chokehold, brings an action for damages, and the chokehold is ruled a violation of his rights under the constitution. What reasons might such a plaintiff have for seeking such an injunction?
    • Lyons says that an injunction would have been warranted only if all police officers always use a chokehold against any citizen in any circumstance, or if the City had ordered or authorized the use of unconstitutional chokeholds. What about a third possible circumstance: the City did not permit police chokeholds, but did little or nothing to enforce the ban? In this third possibility, would it matter if there had been a number of instances of the use of chokeholds? If there was a widespread pattern of such instances?
    • Is Lyons a case best explained as (a) the injury being too speculative, or (b) the Supreme Court being concerned about federal courts being too intrusive into the affairs of local police departments?

    Section II.C.2.b.iii.e (Widely diffused harms):

    • Assume the following facts:
        Senator Frantz Anani is elected to a six-year term as Senator from the state of Florida in November 2026. In March 2027, Congress votes to approve an increase in the pay of the Supreme Court justices. Anani votes against the pay increase. It takes effect June 1, 2027.
             On August 1, 2027, one of the current Justices resigns. On September 1, President Trump nominates Anani to be an Associate Justice to fill a vacancy, and the Senate confirms him on September 15. He is set to resign his Senate seat and take the oath on September 25. Mira Flores, a citizen of Florida, brings an action against Harley seeking to bar him from taking office as an Associate Justice of the Supreme Court.
        1. What constitutional provision(s) might pose a problem for Anani’s attempt to take office as Associate Justice?
        2. Does Flores have standing to bring the action? Why or why not? If not, is there anyone who would have standing?
        3. Suppose Congress had enacted a statute providing that “any citizen may bring an action to contest the eligibility of any individual who has been nominated and confirmed to serve in the federal judiciary.” Would that solve the standing problem? What might Akins (CB 108) suggest?
    • Are Schlesinger v. Reservists to Stop the War (CB 109) and United States v. Richardson (CB 109-110) consistent with Marbury v. Madison?

    Section II.C.2.b.iii.f (de minimis harms): Is California v. Texas consistent with Uzuegbunam v. Preczewski, in your view? Why or why not?

    Section II.C.2.b.iii.g (Prudential Limits on Standing):

    • Make sure you understand the father’s possible interests in Newdow:
      • His own interest as a parent in imparting views to his daughter about religion;
      • His own interest as a parent in not having her exposed to others’ views about religion;
      • His role acting on behalf of his minor child’s interests in freedom of religion and expression.
    • How did the custody decree relate to these interests?
    • Did the Court find that there was no injury or nexus?
    • What effect did the Court’s holding have on the 9th Circuit’s ruling that the Pledge of Allegiance constituted religious indoctrination in violation of the First Amendment because of the inclusion of the words “under God?”
    • The effect of prudential standing doctrine is to allow the federal courts (not just the Supreme Court) to decline to hear a case even though it falls within their Article III jurisdiction and there is no question of any exception to it having been made by Congress. Is it desirable, in your view, that the courts should have that power? Why or why not?
    • Does Lexmark (CB 119) (decided in 2014, ten years after Newdow) mean that there is no long any such thing as prudential limits on standing?