The Volokh Conspiracy

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Supreme Court

Collins, California, and Standing-as-Usual: A Response to Josh Blackman

No, Justice Alito's opinion for the Court did not endorse standing-through-inseverability.


In a post earlier today, my co-blogger Josh Blackman suggests that Justice Alito's opinion for the Court in Collins v. Yellen "quietly endorses the standing-through-inseverability theory" that the Court refused to consider directly in California v. Texas. Given our prior exchanges on standing, readers may not be at all surprised that I disagree with this interpretation of Collins and how it relates to standing doctrine more broadly.

Collins did not endorse standing-through-inseverability. Indeed, it did not do anything with regard to standing that the Court had not done in prior cases. Not only does the opinion not conflict with California v. Texas, the central point in Justice Alito's standing analysis rests on the same point (and cites the same language from the same prior case, Allen v. Wright) as did Justice Breyer's opinion in California v. Texas.

In California, Justice Breyer concluded that the plaintiffs lacked standing because (among other things) their alleged injuries were not traceable to the penaltyless individual mandate. As Justice Breyer noted, for an injury to be redressable, it must be "fairly traceable" to "'allegedly unlawful conduct' of which the plaintiffs complain. Allen v. Wright, 468 U. S. 737, 751 (1984)." This was a problem in California because the various injuries alleged by the plaintiffs were caused by other provisions of the statute and were not affected in any way (let alone augmented) by the existence of an unenforceable and unenforced individual mandate. All of the conduct of which the plaintiffs complained was only unlawful if inseverable (hence, standing-through-inseverability).

In Collins, however, the allegedly unlawful conduct was unlawful because of the constitutional violation raised by the plaintiffs. As a consequence, the showing demanded by the Court's standing doctrine (and the language Alito quotes from Allen) is easily made, as it is in other cases in which the plaintiffs challenge whether a government official was properly appointed or a federal agency is properly constituted.

In Collins, the plaintiffs claimed to be harmed by an action of the FHFA, and this harm is directly traceable to (what plaintiffs claimed) was an unlawful exercise of power by the FHFA. Why was this exercise of power unlawful? Because the FHFA's director could not exercise the power at issue while insulated from presidential removal. This makes the plaintiffs injury directly traceable to the alleged constitutional infirmity. As the Court noted in Seila Law, "In the specific context of the President's removal power, we have found it sufficient that the challenger sustains injury from an executive act that allegedly exceeds the official's authority." This creates the sort of causal chain with which the Court is often concerned in standing cases, and the sort of causation that was utterly lacking in Caliifornia. (This analysis also addresses the other alleged examples of standing-through-inseverability Alito cited in his California dissent–a list of examples that illustrates that Justice Alito did not think he was doing anything innovative or new in Collins.)

Justice Alito further explained this point later in FN23 of his Collins opinion, again referencing what the Court had said about standing to challenge unconstitutional limitations on removal in Seila Law:

a plaintiff that challenges a statutory restriction on the President's power to remove an executive officer can establish standing by showing that it was harmed by an action that was taken by such an officer and that the plaintiff alleges was void.

In Collins, the plaintiffs could claim that were it not for the FHFA's unlawful exercise of power, they would have suffered no injury. No exercise of unlawful power by the FHFA, no injury. In California, on the other hand, the injuries allegedly suffered by the plaintiffs would occur with or without the existence of the penaltyless individual mandate.

There was nothing novel or innovative about Justice Alito's standing analysis in Collins. It was a straightforward application of prior standing doctrine, and had any of Justice Alito's colleagues thought otherwise, they likely would have said so. The Court's current approach to standing may be good or bad, but Collins v. Yellen did nothing to change it.

All of my posts on California v. Texas are indexed here.