The Flawed Foundations of Article III Standing in Surveillance Cases (Part III)

In my first two posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

In June 1972, Chief Justice Warren Burger issued the majority (5-4) opinion of the Court, reversing the Court of Appeals order, and thus affirming the District Court’s dismissal of the plaintiffs’ action. The Court agreed with the defendants’ claim that their surveillance programs were put into place in the anticipation of civil disorder, with no actual or threatened injury by these programs. More relevant to this post, however, the Court held that the plaintiffs did not have standing to sue, stating that “[the plaintiffs’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the “power of the purse”; it is not the role for the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.”

This opinion was a dramatic departure from First Amendment precedent, where courts had created a standard of justiciability in First Amendment cases that was less restrictive than in cases where constitutional rights were not at stake. For example, in Reed Enterprises v. Corcoran (D.C. Cir. 1965), the court held that “[w]here the plaintiff complains of chills and threats in the protected First Amendment area, a court is more disposed to find that he is presenting a real and not an abstract controversy.” In Dombrowski v. Pfister (1965), the Supreme Court held that First Amendment rights were “of transcendent value to all society, and not merely to those exercising their rights,” noting that “[b]ecause of the sensitive nature of constitutionally protected expression, we have not required that all those subject to overbroad regulations risk prosecution to test their rights.”

It is also noteworthy that, prior to Laird, the Supreme Court had flatly rejected a “balancing test” between constitutionally protected expression and national security:

Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. … [W]e have in no way “balanced” those respective interests. We have ruled only that the Constitution requires that the conflict between Congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.

United States v. Robel (1967).

In his dissent, Justice Douglas flatly observed that the majority’s conclusory opinion was “too transparent for serious argument,” and stated “one need not wait to sue until he loses his job or until his reputation is defamed. To withhold standing to sue until that time arrives, would, in practical effect, immunize from judicial scrutiny all surveillance activities, regardless of the misuse and their deterrent effect.” In a separate dissent, Justice Brennan, joined by Justices Stewart and Marshall, strongly disagreed with the majority’s denial of standing, stating “[r]espondents may or may not be able to prove the case they allege. But I agree with the Court of Appeals that they are entitled to try.”

In addition to the flawed reasoning by the majority in Laird regarding standing and justiciability in First Amendment cases, a serious impartiality question was raised by then-Justice Rehnquist’s participation in the majority opinion. Prior to his 1972 appointment to the Supreme Court, Rehnquist was an Assistant Attorney General in the Department of Justice’s Office of Legal Counsel (OLC). While he was with the OLC, Rehnquist appeared before Senator Ervin’s 1971 hearings on the very subject matter raised in Laird. During this hearings, Rehnquist testified as to the legality of the military domestic surveillance programs, and directly opined on the Laird case, then before the D.C. Court of Appeals:

My only point of disagreement with [Sen. Ervin] is to say whether as in the case of Tatum v. Laird that has been pending in the Court of Appeals here in the District of Columbia that an action will lie by private citizens to enjoin the gathering of information by the executive branch where there has been no threat of compulsory process and no pending action against any of those individuals on the part of the government.

The opinion given by then-Assistant Attorney General Rehnquist bears a striking similarity to the conclusion later reached by the Laird Court: chilling effects alone do not warrant standing.

The Laird plaintiffs sought the recusal of Justice Rehnquist based on the clear appearance of bias, citing the Code of Judicial Conduct, which states, in part, that “[a] judge should perform the duties of his office impartially and diligently,” and “should disqualify himself in a proceeding in which his impartiality might reasonably be questioned including but limited to instances where…he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” In October 1972, Justice Rehnquist issued an unprecedented 16-page memorandum where he denied the motion for recusal, acknowledging that “fair minded judges might disagree about [this] matter.” Rehnquist further noted that his recusal could result in “the principle of law presented by the case [remaining] unsettled.” This last point was clearly erroneous, however, as a divided Court in Laird would only insure an evidentiary hearing at the District Court level, which would make a record for later review, possibly by the Supreme Court.

Our courts have long operated under the assumption that the Constitution requires that conflicts between legislative power and individual rights can only be accommodated by legislation that is drawn more narrowly so as to avoid that conflict—it is government that must adjust to the Constitution, not the other way around. As Chief Justice Marshall observed in M’Culloch v. Maryland (1819), “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The Laird Court failed to live up to this standard when it refused to grant Article III standing to citizens who sought to show that the Army’s domestic surveillance programs did not conform with the Constitution. This seriously flawed opinion has become the basis for similar denials of standing for those seeking to challenge government surveillance programs. As Justice Douglas observed in his Laird dissent, “[t]his case is a cancer on our body politic.”

In future posts, I’ll explore further the legacy of Laird to deny standing in surveillance cases.

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