In 1986, Joyce Kelly traveled to Egypt to see the habitat of the endangered Nile crocodile, and she swore she meant to go back. That affidavit was supposed to get Defenders of Wildlife into federal court to challenge the Interior Department's position that the Endangered Species Act stopped at the border. The district court ruled for Defenders, and the Eighth Circuit affirmed. Then in Lujan v. Defenders of Wildlife, the Supreme Court held that the courts never had the power to decide the question at all. She had no plane ticket and no date. Someday isn't imminent.
This episode is about the first door: standing, the doctrine that decides who gets to ask the question. Gwen and Marc walk through the three elements every law student memorizes, which are injury in fact, causation, and redressability. They also trace where those elements came from. The Court calls them the "irreducible constitutional minimum," but they aren't in Article III. They were assembled mostly between 1970 and 1992, from Sierra Club v. Morton to Lujan. The doctrine is younger than many of the judges applying it, and it overrode an act of Congress that said "any person" may sue.
We cover Simon v. Eastern Kentucky Welfare Rights Organization and the problem of harm that runs through a third party. We look at TransUnion v. Ramirez and the 6,300 people whose false terrorist-watchlist flags never left the company's files. We explain why a bare statutory violation isn't automatically a concrete injury, and what Summers v. Earth Island Institute means for procedural plaintiffs. On the administrative law layer, we cover APA § 702 and the zone-of-interests test, Bennett v. Spear, Lexmark's retirement of "prudential standing," associational standing under Hunt, and the special solicitude Massachusetts v. EPA extended to states. Property law turns out to have been sorting beneficiaries from enforcers for centuries.
Then we put it all together. A factory told to install pollution controls has standing without arguing for it. The person downstream who got sick when EPA didn't enforce has a real injury and a much harder path in. None of these doctrines asks whether the agency was wrong. They sort on the shape of the harm: how concentrated it is, how traceable, and how reliably a court order would fix it. That sorting has a pattern. Loper Bright, West Virginia v. EPA, Sackett, and Jarkesy were all brought by regulated parties. Calling the doctrine rigged would be wrong. Calling it neutral is nearly as wrong.
Plus: the White House East Wing litigation, where the Court stayed an injunction after finding a D.C. preservationist likely lacked standing. The Chief Justice dissented and went straight back to the crocodile.
Next week: the ballroom case in full, and a January standing decision that went the other way. Then finality.
00:00:14 --> 00:00:16 to Administrative Remedies, because you can't
00:00:16 --> 00:00:17 fix what you don't understand. Brought to you
00:00:17 --> 00:00:19 in part by the University of Tulsa College of
00:00:19 --> 00:00:22 Law's Mabee Legal Information Center. I'm Gwendolyn
00:00:22 --> 00:00:25 Savitz, an associate professor here at TU. And
00:00:25 --> 00:00:27 I'm Marc Roark, a professor at the College of
00:00:27 --> 00:00:29 Law. We'll be breaking down complex doctrines
00:00:29 --> 00:00:32 with real-life analogies and examples to demystify
00:00:32 --> 00:00:34 the world of administrative law for everyone
00:00:34 --> 00:00:36 trying to understand how government actually
00:00:36 --> 00:00:38 works. Agencies are the main way the federal
00:00:38 --> 00:00:40 government gets things done. It's not through
00:00:40 --> 00:00:42 Congress, for reasons we'll be addressing over
00:00:42 --> 00:00:46 the course of the series. Marc, read this. It's
00:00:46 --> 00:00:48 from an affidavit a woman named Joyce Kelly gave
00:00:48 --> 00:00:51 in the late 1980s in a lawsuit against the Secretary
00:00:51 --> 00:00:53 of the Interior. Here's how the Supreme Court
00:00:53 --> 00:00:57 described it in 1992 in Lujan v. Defenders of
00:00:57 --> 00:01:00 Wildlife. Ms. Kelly stated that she traveled
00:01:00 --> 00:01:02 to Egypt in 1986 and observed the traditional
00:01:02 --> 00:01:05 habitat of the endangered Nile crocodile there
00:01:05 --> 00:01:08 and intends to do so again and hopes to observe
00:01:08 --> 00:01:11 the crocodile directly. So Joyce Kelly was a
00:01:11 --> 00:01:13 member of Defenders of Wildlife. The organization
00:01:13 --> 00:01:16 was suing the Secretary of the Interior because
00:01:16 --> 00:01:18 the department had taken the position that the
00:01:18 --> 00:01:20 Endangered Species Act didn't apply to federal
00:01:20 --> 00:01:23 projects overseas. Her affidavit was there to
00:01:23 --> 00:01:24 establish that the case affected her personally,
00:01:25 --> 00:01:27 that she had standing. Because she had been to
00:01:27 --> 00:01:31 Egypt and she wanted to go back and she wanted
00:01:31 --> 00:01:33 to see the crocodiles. Yes, that was the argument.
00:01:33 --> 00:01:35 And another member's affidavit said that she'd
00:01:35 --> 00:01:39 visited Sri Lanka in 1981 and wanted to return
00:01:39 --> 00:01:41 and observe elephants. And the Court said no.
00:01:42 --> 00:01:45 Right. Justice Scalia, writing for the Court,
00:01:45 --> 00:01:48 said those affidavits did not establish injury
00:01:48 --> 00:01:50 in fact. Wanting to go back someday isn't enough.
00:01:50 --> 00:01:53 There is no plane ticket, no booked trip, no date,
00:01:53 --> 00:01:56 just someday intentions, the Court said, don't
00:01:56 --> 00:01:58 show an injury that's actual or imminent. And
00:01:58 --> 00:02:00 the lower courts had already decided the merits.
00:02:00 --> 00:02:02 The district court ruled for Defenders and ordered
00:02:02 --> 00:02:05 the Secretary to rewrite the regulation,
00:02:05 --> 00:02:07 and the Eighth Circuit had affirmed. But instead,
00:02:08 --> 00:02:09 the Supreme Court held that the federal courts
00:02:09 --> 00:02:11 never had the power to decide the question and
00:02:11 --> 00:02:14 that merits ruling was wiped out. And that's
00:02:14 --> 00:02:16 the door we're talking about this episode. Right.
00:02:16 --> 00:02:18 It's the first one. Standing decides who gets
00:02:18 --> 00:02:21 to ask the question. And in doing so, it shapes
00:02:21 --> 00:02:23 what the entire administrative state looks like,
00:02:23 --> 00:02:25 because the people who can sue, sue, and the
00:02:25 --> 00:02:28 people who can't, don't. Whole categories of
00:02:28 --> 00:02:31 agency action only get challenged by particular
00:02:31 --> 00:02:33 kinds of plaintiffs. It's a selection mechanism.
00:02:34 --> 00:02:36 It picks who gets to be a plaintiff, and the
00:02:36 --> 00:02:38 picks aren't random. Lujan is where the Court
00:02:38 --> 00:02:40 laid out the test the way modern lawyers learn
00:02:40 --> 00:02:43 it. There are three elements. You have to show
00:02:43 --> 00:02:46 injury in fact, causation, and redressability.
00:02:46 --> 00:02:50 And every one of those we cover in courses like
00:02:50 --> 00:02:54 con law. So injury in fact means that the plaintiff
00:02:54 --> 00:02:56 suffered an actual injury, not a generalized
00:02:56 --> 00:02:58 grievance, not "I don't like this policy," but
00:02:58 --> 00:03:00 something that happened to them or is about to.
00:03:01 --> 00:03:03 Causation means the injury has to be fairly traceable
00:03:03 --> 00:03:05 to the defendant's conduct. And redressability
00:03:05 --> 00:03:08 means a favorable ruling has to be likely to
00:03:08 --> 00:03:11 fix it. And then the injury in fact part, the
00:03:11 --> 00:03:14 first one, has three parts of its own. It has
00:03:14 --> 00:03:16 to be concrete, particularized, and actual or
00:03:16 --> 00:03:18 imminent. Concrete means real, not theoretical.
00:03:18 --> 00:03:21 Like Joyce Kelly's hope to see a crocodile. So
00:03:21 --> 00:03:24 her interest was real. The Court said the desire
00:03:24 --> 00:03:26 to observe an animal species, even for purely
00:03:26 --> 00:03:29 aesthetic reasons, is undeniably a cognizable
00:03:29 --> 00:03:32 interest. Her problem was the third piece. The
00:03:32 --> 00:03:34 particularized piece: the injury has to affect
00:03:34 --> 00:03:38 you in a personal and individual way. That's
00:03:38 --> 00:03:40 not the same as asking how many people it affects.
00:03:40 --> 00:03:42 An injury doesn't stop being particularized just
00:03:42 --> 00:03:45 because 30 million people suffer it too. Lujan
00:03:45 --> 00:03:48 itself set mass torts and mass fraud aside. But
00:03:48 --> 00:03:50 a generalized grievance is something different.
00:03:50 --> 00:03:52 Harm only to everyone's shared interest in the
00:03:52 --> 00:03:55 government following the law. And that distinction
00:03:55 --> 00:03:57 isn't new, by the way. Property law has sorted
00:03:57 --> 00:04:00 it the same way for centuries. If my neighbor's
00:04:00 --> 00:04:03 runoff floods my lot, I can sue him. Somebody
00:04:03 --> 00:04:06 three towns over who just dislikes the drainage
00:04:06 --> 00:04:09 can't. You need an interest in the affected land,
00:04:09 --> 00:04:11 not an opinion about it and not just a hope.
00:04:11 --> 00:04:14 So that tells you the doctrine isn't an admin
00:04:14 --> 00:04:16 law invention. It's the Court's instinct about
00:04:16 --> 00:04:19 who belongs in a lawsuit. But then the third
00:04:19 --> 00:04:22 part of it, the actual or imminent requirement.
00:04:22 --> 00:04:24 So the injury has to be happening now or about
00:04:24 --> 00:04:27 to happen. Not someday, not maybe, not contingent
00:04:27 --> 00:04:30 on a long chain of events. The Court is allergic
00:04:30 --> 00:04:32 to speculative injuries. And that's where Lujan
00:04:32 --> 00:04:36 dies. Someday isn't imminent. Right. The injury
00:04:36 --> 00:04:38 has to be fairly traceable to the defendant's
00:04:38 --> 00:04:40 conduct, not produced by some independent third
00:04:40 --> 00:04:42 party, not the result of choices other people
00:04:42 --> 00:04:45 made for their own reasons. And this is especially
00:04:45 --> 00:04:48 tight in admin cases because so much agency action
00:04:48 --> 00:04:50 regulates someone else and the harm reaches the
00:04:50 --> 00:04:53 plaintiff through that third party. EPA writes
00:04:53 --> 00:04:56 a rule. The company has to comply. The plaintiff
00:04:56 --> 00:04:58 isn't the company. The plaintiff might be somebody
00:04:58 --> 00:05:00 downstream who'd benefit from compliance, or
00:05:00 --> 00:05:02 the would-be plaintiff. Is that injury fairly
00:05:02 --> 00:05:04 traceable to EPA's choice, or was it really the
00:05:04 --> 00:05:07 company's choice that did the harm? So causation
00:05:07 --> 00:05:10 is actually where a lot of cases die. Hardest
00:05:10 --> 00:05:12 for beneficiaries because the chain runs through
00:05:12 --> 00:05:15 somebody else. Right. Same thing with redressability.
00:05:15 --> 00:05:17 A favorable ruling has to be likely to fix the
00:05:17 --> 00:05:21 problem. Not maybe, not eventually, likely. And
00:05:21 --> 00:05:24 that sounds like a tautology. The plaintiff has
00:05:24 --> 00:05:27 standing to sue if winning would help them. And
00:05:27 --> 00:05:29 it can function that way, too. The classic case
00:05:29 --> 00:05:32 is Simon v. Eastern Kentucky Welfare Rights Organization.
00:05:32 --> 00:05:35 This one's from 1976. We have low-income plaintiffs
00:05:35 --> 00:05:38 who are challenging an IRS rule that lets hospitals
00:05:38 --> 00:05:41 keep their charitable tax status even though
00:05:41 --> 00:05:43 they're offering less free care to poor patients.
00:05:44 --> 00:05:46 Their injury was real here. They'd been turned
00:05:46 --> 00:05:48 away by the hospital. But the Court said it was
00:05:48 --> 00:05:50 speculative whether undoing the IRS rule would
00:05:50 --> 00:05:52 change anything because the hospitals might simply
00:05:52 --> 00:05:54 give up the tax benefit and keep turning people
00:05:54 --> 00:05:57 away. The decision that mattered belonged to
00:05:57 --> 00:06:00 someone who wasn't in the courtroom. Every standing
00:06:00 --> 00:06:02 case in federal court runs through those requirements.
00:06:02 --> 00:06:05 Here's the whole statement from Lujan. So the Court
00:06:05 --> 00:06:07 said, over the years, our cases have established
00:06:07 --> 00:06:10 that the irreducible constitutional minimum of
00:06:10 --> 00:06:12 standing contains three elements. First, the
00:06:12 --> 00:06:14 plaintiff must have suffered an injury in fact,
00:06:14 --> 00:06:16 an invasion of a legally protected interest,
00:06:16 --> 00:06:19 which is concrete and particularized and actual
00:06:19 --> 00:06:22 or imminent, not conjectural or hypothetical.
00:06:23 --> 00:06:25 Second, there must be a causal connection between
00:06:25 --> 00:06:27 the injury and the conduct complained of. The
00:06:27 --> 00:06:30 injury has to be fairly traceable to the challenged
00:06:30 --> 00:06:32 action of the defendant and not the result of
00:06:32 --> 00:06:34 independent action of some third party not before
00:06:34 --> 00:06:37 the court. And third, it must be likely, as opposed
00:06:37 --> 00:06:40 to merely speculative, that the injury will be
00:06:40 --> 00:06:43 redressed by a favorable decision. The irreducible
00:06:43 --> 00:06:45 constitutional minimum. So they're saying it's
00:06:45 --> 00:06:47 not a policy choice. It's not a docket management
00:06:47 --> 00:06:50 rule. This is the floor that Article III sets,
00:06:51 --> 00:06:53 beneath which nobody, including Congress, can
00:06:53 --> 00:06:56 go. Congress can write "any person may bring
00:06:56 --> 00:06:58 suit," but if the plaintiff doesn't satisfy the
00:06:58 --> 00:07:00 three elements, the provision doesn't do what
00:07:00 --> 00:07:03 it says. Then where did the three come from?
00:07:03 --> 00:07:06 Because irreducible implies that they were always
00:07:06 --> 00:07:09 there, yet they're not anywhere in the Constitution.
00:07:10 --> 00:07:12 Right. Not surprisingly, they weren't always
00:07:12 --> 00:07:14 there. The older question was whether the plaintiff
00:07:14 --> 00:07:17 had a legal interest. This was usually one that
00:07:17 --> 00:07:19 a statute or the common law had handed them.
00:07:19 --> 00:07:21 And this made standing substantially a matter
00:07:21 --> 00:07:24 of what Congress had written. Injury in fact
00:07:24 --> 00:07:28 arrived as a named test in 1970. Then in Sierra
00:07:28 --> 00:07:31 Club v. Morton in 1972, the Sierra Club challenged
00:07:31 --> 00:07:34 a ski development in a national forest and lost
00:07:34 --> 00:07:36 because the organization asserted an institutional
00:07:36 --> 00:07:39 interest in conservation without alleging that
00:07:39 --> 00:07:41 a single member had actually set foot in the
00:07:41 --> 00:07:43 valley. And that's the direct ancestor of the
00:07:43 --> 00:07:46 crocodile affidavit. They lost in Lujan in 1992,
00:07:46 --> 00:07:50 doing exactly what Sierra Club told them to do
00:07:50 --> 00:07:52 in 1972. Right. They figured they needed to find
00:07:52 --> 00:07:54 a member who goes to the place and put that in
00:07:54 --> 00:07:57 an affidavit. And it wasn't enough because the
00:07:57 --> 00:07:59 requirement had moved again. Not that a member
00:07:59 --> 00:08:02 goes there, but that she has a concrete plan
00:08:02 --> 00:08:04 to go. Lujan was also important for another reason.
00:08:05 --> 00:08:07 The Endangered Species Act has a citizen suit
00:08:07 --> 00:08:09 provision. Congress wrote that any person may
00:08:09 --> 00:08:11 commence a suit to enforce it. Scalia's opinion
00:08:11 --> 00:08:13 holds that Congress cannot convert the public's
00:08:13 --> 00:08:15 interest in lawful government into an individual
00:08:15 --> 00:08:19 right just by saying so. And the elements themselves
00:08:19 --> 00:08:21 weren't new. Scalia wrote that our cases have
00:08:21 --> 00:08:23 established them. The Court has been treating
00:08:23 --> 00:08:26 them as constitutional since roughly the 1970s.
00:08:27 --> 00:08:29 But Lujan did crystallize them into this three-
00:08:29 --> 00:08:32 part test that lawyers memorize. And it also
00:08:32 --> 00:08:34 said that Congress can't legislate around it,
00:08:34 --> 00:08:37 at least in suits against the government. So
00:08:37 --> 00:08:40 "this is what Article III requires" is doing a lot
00:08:40 --> 00:08:43 of work in this opinion. The requirement that
00:08:43 --> 00:08:46 overrode an act of Congress got assembled between
00:08:46 --> 00:08:49 1970 and 1992. Someone has to say what a case
00:08:49 --> 00:08:52 or controversy is and that somebody is going
00:08:52 --> 00:08:54 to be a federal judge. But the doctrine that
00:08:54 --> 00:08:56 decides how much work the federal courts take
00:08:56 --> 00:08:59 on was written by the federal courts, mostly
00:08:59 --> 00:09:02 inside that 22-year window. It's younger than
00:09:02 --> 00:09:04 a bunch of the judges who are now applying it.
00:09:04 --> 00:09:06 But it didn't have to be this way. Let's look
00:09:06 --> 00:09:08 at what Article III actually says about the judicial
00:09:08 --> 00:09:11 power. I've pulled out the two clauses that matter.
00:09:11 --> 00:09:13 The judicial power shall extend to all cases,
00:09:13 --> 00:09:16 in law and equity, arising under this Constitution,
00:09:16 --> 00:09:19 the laws of the United States, and treaties made,
00:09:19 --> 00:09:21 or which shall be made, under their authority;
00:09:21 --> 00:09:23 to controversies to which the United States shall
00:09:23 --> 00:09:26 be a party. That's not restrictive language.
00:09:27 --> 00:09:29 All cases arising under the laws of the United
00:09:29 --> 00:09:33 States. A citizen suit provision is a law of the
00:09:33 --> 00:09:36 United States. And when the suit is against a
00:09:36 --> 00:09:38 federal agency, the United States is a party.
00:09:38 --> 00:09:41 So on the face of the text, it seems to be covered
00:09:41 --> 00:09:43 twice. Right. That was substantially the older
00:09:43 --> 00:09:46 understanding. If Congress created a right and
00:09:46 --> 00:09:48 said who could enforce it, the enforcement was
00:09:48 --> 00:09:51 a case. The modern argument is that cases and
00:09:51 --> 00:09:55 controversies were terms of art in 1787. Not
00:09:55 --> 00:09:57 just any dispute a person wanted to put in front
00:09:57 --> 00:09:59 of a judge, but the kind of concrete adversary
00:09:59 --> 00:10:01 proceeding that courts have traditionally resolved.
00:10:01 --> 00:10:04 On that reading, the limit lives inside case and
00:10:04 --> 00:10:07 controversy, and Congress can't legislate past
00:10:07 --> 00:10:10 them. Which is a plausible reading. It just isn't
00:10:10 --> 00:10:13 one you would get from the sentence I read. Right.
00:10:13 --> 00:10:16 We often say courts deal with cases and controversies,
00:10:16 --> 00:10:18 as though that's how it's laid out in the Constitution.
00:10:18 --> 00:10:20 And the courts are just stuck interpreting these
00:10:20 --> 00:10:22 vague terms without context. But there actually
00:10:22 --> 00:10:25 is a decent amount of context, and it doesn't
00:10:25 --> 00:10:27 point to an attempt to close the courthouse door.
00:10:27 --> 00:10:29 There's also a structural argument underneath,
00:10:29 --> 00:10:32 though. If Congress can make anyone a plaintiff,
00:10:32 --> 00:10:34 Congress can hand the federal courts a roving
00:10:34 --> 00:10:36 power to supervise whether the executive is faithfully
00:10:36 --> 00:10:39 executing the law. So the real limit isn't about
00:10:39 --> 00:10:41 the plaintiff at all. It's about keeping the
00:10:41 --> 00:10:43 courts out of a role that belongs to somebody
00:10:43 --> 00:10:46 else. Yeah, that seems to be kind of what it
00:10:46 --> 00:10:48 was intended to do, protecting the separation
00:10:48 --> 00:10:50 of powers. Some people get to sue to enforce
00:10:50 --> 00:10:54 something and some don't. So let's look at this
00:10:54 --> 00:10:58 through an example. The EPA finalizes a rule
00:10:58 --> 00:11:00 and my factory has to install pollution controls.
00:11:01 --> 00:11:03 Okay, so you're the factory. Do you have an injury
00:11:03 --> 00:11:05 in fact? Well, I have to spend money. Right.
00:11:05 --> 00:11:08 That is a concrete, particularized and imminent
00:11:08 --> 00:11:12 harm. Causation is direct. The rule produced
00:11:12 --> 00:11:15 the requirement. And as far as redressability,
00:11:16 --> 00:11:18 if the court strikes the rule, I don't install.
00:11:19 --> 00:11:22 So seems like five for five on these tests. All
00:11:22 --> 00:11:24 right. So clean standing there. Now let's flip
00:11:24 --> 00:11:28 it. The factory is upstream of a town. EPA doesn't
00:11:28 --> 00:11:30 enforce something against the factory. And someone
00:11:30 --> 00:11:32 downstream gets sick from polluted water and
00:11:32 --> 00:11:35 wants to sue the EPA for under-enforcement. Okay,
00:11:35 --> 00:11:38 injury's easy. They're sick. So again, it's concrete,
00:11:38 --> 00:11:41 particularized, and actual. Okay, but then it
00:11:41 --> 00:11:44 gets harder. Yeah, we have that problem of causation,
00:11:44 --> 00:11:48 because the injury is really caused by the factory's
00:11:48 --> 00:11:52 pollution, not by the EPA's choice not to enforce.
00:11:52 --> 00:11:55 So the chain runs through a third party. Right,
00:11:55 --> 00:11:58 and redressability, because even an order against
00:11:58 --> 00:12:01 EPA runs through the factory. Whether its discharges
00:12:01 --> 00:12:03 drop enough to help this particular person is
00:12:03 --> 00:12:06 really out of the court's hands. And then there's
00:12:06 --> 00:12:09 a problem that isn't even standing at all. Under
00:12:09 --> 00:12:11 Heckler v. Chaney, an agency's decision not to
00:12:11 --> 00:12:14 enforce is presumptively unreviewable. So this
00:12:14 --> 00:12:16 person who's clearly injured, is injured in a
00:12:16 --> 00:12:18 tangible way, has a much harder path into court
00:12:18 --> 00:12:21 than the regulated company that's just been told
00:12:21 --> 00:12:23 to install equipment. And the plaintiff with
00:12:23 --> 00:12:26 the more obvious moral case actually has the
00:12:26 --> 00:12:29 worse legal case. Right. So the factory owners
00:12:29 --> 00:12:31 would probably disagree with that. But it's certainly
00:12:31 --> 00:12:33 true that many people the law might have intended
00:12:33 --> 00:12:36 to help can't sue to ensure it does. The doctrine
00:12:36 --> 00:12:39 has moved since Lujan, and the biggest move is
00:12:39 --> 00:12:41 on concreteness. We have a couple of cases from
00:12:41 --> 00:12:44 within the last 10 years, Spokeo v. Robins
00:12:44 --> 00:12:48 in 2016 and TransUnion v. Ramirez in 2021. Lujan
00:12:48 --> 00:12:50 had answered one version of the question for
00:12:50 --> 00:12:52 suits against the government, but it expressly
00:12:52 --> 00:12:55 left the private suit version open. Spokeo and
00:12:55 --> 00:12:58 TransUnion took that up. What happens when Congress
00:12:58 --> 00:13:00 creates a right, somebody sues saying the right
00:13:00 --> 00:13:02 was violated, and the violation didn't cause
00:13:02 --> 00:13:06 any tangible harm? So a bare procedural injury.
00:13:06 --> 00:13:08 Right. And this can matter for administrative
00:13:08 --> 00:13:10 law because plenty of APA challenges look like
00:13:10 --> 00:13:13 that. Someone says the agency violated a procedure.
00:13:13 --> 00:13:14 They didn't give notice. They didn't consider
00:13:14 --> 00:13:17 comments. They didn't follow a statute. And they
00:13:17 --> 00:13:19 sue under the APA. Was the plaintiff actually
00:13:19 --> 00:13:23 hurt? Not always in a tangible sense. So TransUnion
00:13:23 --> 00:13:26 isn't an APA case. It's a private suit. But it's
00:13:26 --> 00:13:28 the Court's most recent full statement on concreteness.
00:13:29 --> 00:13:32 It's a class action, and the credit reporting
00:13:32 --> 00:13:34 company had a system that flagged consumers'
00:13:34 --> 00:13:36 names as possibly matching people on a federal
00:13:36 --> 00:13:38 terrorist and drug trafficker list. Thousands
00:13:38 --> 00:13:40 of people got flagged who weren't actually on
00:13:40 --> 00:13:43 that list. And the Fair Credit Reporting Act
00:13:43 --> 00:13:45 says that you can sue for that kind of misreporting.
00:13:46 --> 00:13:49 So the class actually had two groups. There were
00:13:49 --> 00:13:51 about 1 people whose inaccurate reports
00:13:51 --> 00:13:53 had actually been transmitted to third parties,
00:13:53 --> 00:13:57 and about 6 whose inaccurate reports just
00:13:57 --> 00:13:59 sat in TransUnion's internal files. And the ones
00:13:59 --> 00:14:02 whose reports actually went somewhere have a
00:14:02 --> 00:14:04 real injury, while the ones sitting in a file
00:14:04 --> 00:14:07 don't. Right. That's what the Court said, five
00:14:07 --> 00:14:09 to four. So Kavanaugh wrote that a bare statutory
00:14:09 --> 00:14:12 violation, Congress just saying you have a right
00:14:12 --> 00:14:15 and somebody violating it, isn't automatically
00:14:15 --> 00:14:17 a concrete injury. There has to be actual harm.
00:14:18 --> 00:14:20 So the 1 whose reports had actually been transmitted
00:14:20 --> 00:14:23 had concrete reputational harm. But the 6
00:14:23 --> 00:14:26 whose reports had just stayed internal to TransUnion
00:14:26 --> 00:14:29 didn't. And that one I don't have much trouble
00:14:29 --> 00:14:33 with because nobody outside the company ever
00:14:33 --> 00:14:36 saw those files. No employer, no lender, nobody.
00:14:36 --> 00:14:39 Whatever happened to those 6 people, it
00:14:39 --> 00:14:43 didn't happen where anyone could see it. So Kavanaugh's
00:14:43 --> 00:14:45 line is close to that. No concrete harm, so no
00:14:45 --> 00:14:48 standing. Which is different from the crocodile
00:14:48 --> 00:14:51 case in kind, not just in degree. Joyce Kelly
00:14:51 --> 00:14:54 wanted something and couldn't have it. These
00:14:54 --> 00:14:56 plaintiffs are pointing at a database entry.
00:14:56 --> 00:14:59 So you can think TransUnion got the facts right
00:14:59 --> 00:15:01 and still think the principle it announces can
00:15:01 --> 00:15:04 have concerning implications. Even though Congress
00:15:04 --> 00:15:06 had said in the statute that the violation itself
00:15:06 --> 00:15:09 was actionable. Right. So the Court's answer
00:15:09 --> 00:15:11 is that Congress can't override Article III. Congress
00:15:11 --> 00:15:14 can identify and elevate harms, but the harm
00:15:14 --> 00:15:16 still has to be concrete enough to count as a
00:15:16 --> 00:15:18 case or controversy. Citizen suit provisions
00:15:18 --> 00:15:20 in environmental statutes are Congress giving
00:15:20 --> 00:15:23 people the right to sue polluters or to sue agencies
00:15:23 --> 00:15:25 that aren't enforcing. But the citizen still
00:15:25 --> 00:15:27 needs a concrete injury of her own to do it.
00:15:28 --> 00:15:29 Lujan settled that for suits against the government,
00:15:30 --> 00:15:32 and TransUnion shows how seriously the Court
00:15:32 --> 00:15:34 takes the concreteness half of it. So the
00:15:34 --> 00:15:37 statute can't manufacture standing. Right. The
00:15:37 --> 00:15:39 Constitution sets the floor and Congress can't
00:15:39 --> 00:15:41 lower it. For procedural plaintiffs, that floor
00:15:41 --> 00:15:44 has been in place since Lujan, and the Court restated
00:15:44 --> 00:15:46 it again in Summers v. Earth Island Institute
00:15:46 --> 00:15:50 in 2009, said that a procedural right in the
00:15:50 --> 00:15:52 abstract isn't enough. The plaintiff has to connect
00:15:52 --> 00:15:54 the violation to a concrete interest of her own,
00:15:54 --> 00:15:57 although some informational rights can be concrete
00:15:57 --> 00:15:59 interests themselves. But once that connection
00:15:59 --> 00:16:02 is made, the rules actually loosen. Lujan says
00:16:02 --> 00:16:04 a procedural plaintiff doesn't have to meet all
00:16:04 --> 00:16:07 the normal standards for redressability and immediacy.
00:16:07 --> 00:16:09 The neighbor of a proposed federally licensed
00:16:09 --> 00:16:11 dam can challenge a missing environmental impact
00:16:11 --> 00:16:14 statement without having to actually prove that
00:16:14 --> 00:16:15 the statement would have changed the outcome.
00:16:16 --> 00:16:18 The hard part is the concrete interest, and it's
00:16:18 --> 00:16:20 part of why fewer people can challenge agency
00:16:20 --> 00:16:23 action than you'd expect, given how much agency
00:16:23 --> 00:16:25 action there is. Lujan and TransUnion are general
00:16:25 --> 00:16:28 standing cases. They apply to any plaintiff in
00:16:28 --> 00:16:31 any federal court. Administrative law also has
00:16:31 --> 00:16:33 some pieces on top of it. Section 702 says a
00:16:33 --> 00:16:36 person suffering legal wrong because of agency
00:16:36 --> 00:16:39 action, or adversely affected or aggrieved
00:16:39 --> 00:16:41 by agency action within the meaning of a relevant
00:16:41 --> 00:16:44 statute, is entitled to judicial review thereof.
00:16:45 --> 00:16:47 Courts have read that to do two things. First,
00:16:47 --> 00:16:50 the APA itself grants a cause of action. You
00:16:50 --> 00:16:52 can sue under the APA. You don't need a separate
00:16:52 --> 00:16:55 statute. And second, they've said that the plaintiff
00:16:55 --> 00:16:57 has to be within the zone of interests that the
00:16:57 --> 00:16:59 underlying statute was designed to protect. So
00:16:59 --> 00:17:01 if the challenge is to agency action under, say,
00:17:01 --> 00:17:03 the Clean Air Act, the plaintiff has to be the
00:17:03 --> 00:17:05 kind of person that Act was meant to protect
00:17:05 --> 00:17:08 or regulate. Okay, so property law has something
00:17:08 --> 00:17:12 similar, as you might expect. A restrictive covenant
00:17:12 --> 00:17:16 on a subdivision or a rule about setbacks or
00:17:16 --> 00:17:18 fences can only be enforced by someone the covenant
00:17:18 --> 00:17:21 was meant to benefit. A lot owner in the subdivision
00:17:21 --> 00:17:24 can sue. A stranger who drives past and dislikes
00:17:24 --> 00:17:27 the fence can't, even if the fence really does
00:17:27 --> 00:17:30 violate the covenant. The statute, like the covenant,
00:17:30 --> 00:17:33 comes with a built-in list of who it's for.
00:17:33 --> 00:17:36 So that's close, but yours is a lot easier to
00:17:36 --> 00:17:38 determine. With a covenant, the class of beneficiaries
00:17:38 --> 00:17:41 is written down. It's the other lots in the subdivision.
00:17:41 --> 00:17:44 With a statute, the class is inferred from purpose,
00:17:44 --> 00:17:47 and that can be a lot softer. The zone of interests
00:17:47 --> 00:17:49 test itself is a pretty weak filter. The Court
00:17:49 --> 00:17:51 has said that the test isn't especially demanding
00:17:51 --> 00:17:53 and the plaintiff's interests only need to be
00:17:53 --> 00:17:57 arguably within the zone of interests. But notice
00:17:57 --> 00:17:59 what the covenant separates. Who is benefiting
00:17:59 --> 00:18:01 from a rule and who is holding the power to enforce
00:18:01 --> 00:18:04 it? The Clean Air Act shows that these are different,
00:18:04 --> 00:18:07 almost experimentally. Congress wrote a citizen
00:18:07 --> 00:18:09 suit provision into it, that any person may sue
00:18:09 --> 00:18:12 a violator or sue EPA for failing to perform
00:18:12 --> 00:18:15 a nondiscretionary duty. Congress was deliberately
00:18:15 --> 00:18:17 attempting to turn ordinary people into private
00:18:17 --> 00:18:19 enforcers. That's the legislature handing out
00:18:19 --> 00:18:22 enforcement power that the injury by itself would
00:18:22 --> 00:18:24 never have supplied. That helps show there are
00:18:24 --> 00:18:25 really three questions here. Who is affected?
00:18:26 --> 00:18:28 That's a fact about the world. Who Congress has
00:18:28 --> 00:18:31 authorized to sue and for what? That comes from
00:18:31 --> 00:18:33 the statute. And whether the plaintiff has the
00:18:33 --> 00:18:35 constitutional stake that Article III requires,
00:18:35 --> 00:18:37 that's Lujan. And it cuts the other way,
00:18:37 --> 00:18:41 too, presumably. You can be plainly harmed and
00:18:41 --> 00:18:43 still not have the statutory cause of action
00:18:43 --> 00:18:47 you're trying to use. So we can kind of see this
00:18:47 --> 00:18:50 in Bennett v. Spear. This one's from 1997. Here,
00:18:50 --> 00:18:53 ranchers and irrigation districts were about
00:18:53 --> 00:18:55 to lose water because of an Endangered Species
00:18:55 --> 00:18:58 Act biological opinion. So they plainly had an
00:18:58 --> 00:19:00 Article III injury, but that didn't answer how
00:19:00 --> 00:19:03 they could sue. The Court held that one claim
00:19:03 --> 00:19:06 fit the ESA's citizen suit provision. The others
00:19:06 --> 00:19:09 didn't and had to proceed under the APA. So the
00:19:09 --> 00:19:11 injury tells you that they had a stake, but it
00:19:11 --> 00:19:13 doesn't tell you what cause of action Congress
00:19:13 --> 00:19:16 gave them. And it could be why the cases are
00:19:16 --> 00:19:18 so hard to line up. Courts have been distinguishing
00:19:18 --> 00:19:20 beneficiaries from enforcers for centuries before
00:19:20 --> 00:19:23 anyone said injury in fact. But when the modern
00:19:23 --> 00:19:26 test got assembled around 1970, the older framework
00:19:26 --> 00:19:28 was sitting right there and the Court built something
00:19:28 --> 00:19:31 else instead. "You weren't really injured" sounds
00:19:31 --> 00:19:34 like a finding. "You're not the one entitled to
00:19:34 --> 00:19:37 enforce" sounds like a choice. Right. One of those
00:19:37 --> 00:19:39 invites an argument, but the other closes it.
00:19:39 --> 00:19:42 So then there's this associational standing,
00:19:42 --> 00:19:45 how the big organizations actually get into court.
00:19:45 --> 00:19:47 Right. An organization can sue on behalf of its
00:19:47 --> 00:19:50 members if it can show three things, that its
00:19:50 --> 00:19:52 members would have standing in their own right,
00:19:52 --> 00:19:54 that the interests at stake are germane to the
00:19:54 --> 00:19:57 organization's purpose, and neither the claim
00:19:57 --> 00:19:59 nor the relief requires individual participation
00:19:59 --> 00:20:01 by each member. That's how organizations like
00:20:01 --> 00:20:04 the Sierra Club and the Chamber of Commerce can
00:20:04 --> 00:20:06 get in when their members have standing. The
00:20:06 --> 00:20:09 members have the injuries, the organization consolidates
00:20:09 --> 00:20:12 them. Right. So Defenders of Wildlife was trying
00:20:12 --> 00:20:14 to use exactly that in Lujan. And they lost because
00:20:14 --> 00:20:16 the Court decided that the members themselves
00:20:16 --> 00:20:19 didn't have standing. Joyce Kelly couldn't establish
00:20:19 --> 00:20:21 her own injury, so the organization couldn't
00:20:21 --> 00:20:24 sue on her behalf. Associational standing reorganizes
00:20:24 --> 00:20:26 a case. It doesn't manufacture standing where
00:20:26 --> 00:20:29 none existed. Anyone following the news right
00:20:29 --> 00:20:32 now has a question about that, right? The ballroom
00:20:32 --> 00:20:35 case. Yes, the White House East Wing litigation.
00:20:36 --> 00:20:39 The National Trust went in on associational standing
00:20:39 --> 00:20:42 under Hunt through one member, Alison Hoagland,
00:20:42 --> 00:20:44 a historic preservation professor who lives in
00:20:44 --> 00:20:47 D.C., who visits the area about once a month
00:20:47 --> 00:20:48 and who objects to what the new construction
00:20:48 --> 00:20:51 looks like. The Court said that's likely not
00:20:51 --> 00:20:54 a concrete and particularized injury and stayed
00:20:54 --> 00:20:56 an injunction that was in place. Which sits badly
00:20:56 --> 00:20:59 next to everything you just told me about aesthetic
00:20:59 --> 00:21:02 injury in Morton. Yeah. So it really doesn't
00:21:02 --> 00:21:04 work with a lot of the precedent. This was an
00:21:04 --> 00:21:06 emergency application. So the Court said that
00:21:06 --> 00:21:09 they likely lack standing. That's a prediction.
00:21:09 --> 00:21:11 It's not a holding. And the case is still alive.
00:21:11 --> 00:21:14 And the Chief Justice dissented, joined by the
00:21:14 --> 00:21:16 three liberal justices. And his sharpest line
00:21:16 --> 00:21:18 goes straight back to Joyce Kelly. After this
00:21:18 --> 00:21:20 ruling, "I want to look at a crocodile" can get
00:21:20 --> 00:21:22 you into federal court. "I want to look at the
00:21:22 --> 00:21:25 White House" can't. So the doctrine we've been
00:21:25 --> 00:21:28 teaching is still the doctrine. Yeah, so it's
00:21:28 --> 00:21:29 still the doctrine, but the ground under one
00:21:29 --> 00:21:32 part of it is definitely moving. Next week's
00:21:32 --> 00:21:34 episode is just going to be the ballroom case
00:21:34 --> 00:21:36 and another standing case from January that went
00:21:36 --> 00:21:39 the other way. So then back to the categories.
00:21:39 --> 00:21:41 There is a fourth one, isn't there? The states.
00:21:42 --> 00:21:45 Yes, so there is now and has been for about 20
00:21:45 --> 00:21:48 years. Massachusetts sued the EPA for refusing
00:21:48 --> 00:21:50 to regulate greenhouse gases, and the standing
00:21:50 --> 00:21:53 fight was the hard part of the case. In Massachusetts v.
00:21:53 --> 00:21:56 EPA in 2007, the Court said the state was entitled
00:21:56 --> 00:21:58 to what it called special solicitude in the standing
00:21:58 --> 00:22:01 analysis. So treating the state as a different
00:22:01 --> 00:22:03 kind of plaintiff than a person or a company,
00:22:03 --> 00:22:06 that seems to have real doctrinal consequences.
00:22:07 --> 00:22:09 Yes. So it's a different kind of plaintiff with
00:22:09 --> 00:22:11 a different kind of injury. The state's injury
00:22:11 --> 00:22:13 here was loss of coastline, a concrete physical
00:22:13 --> 00:22:16 harm to its own territory. And the Court stressed
00:22:16 --> 00:22:18 that Massachusetts was a sovereign that had given
00:22:18 --> 00:22:20 up some of its power when it joined the Union.
00:22:21 --> 00:22:23 And the doctrine has been wrestling with whether
00:22:23 --> 00:22:26 that survives. Right. Lower courts have read
00:22:26 --> 00:22:28 it narrowly, and whether special solicitude survives
00:22:28 --> 00:22:31 at full strength is contested. So between Article
00:22:31 --> 00:22:33 III, the zone of interests, associational standing,
00:22:34 --> 00:22:36 and the special solicitude for states, the rules
00:22:36 --> 00:22:39 pull in different directions. The constitutional
00:22:39 --> 00:22:41 layer is narrow and hard. Zone of interests is
00:22:41 --> 00:22:44 soft. And in Lexmark in 2014, the Court said
00:22:44 --> 00:22:46 its old label, prudential standing, was misleading.
00:22:47 --> 00:22:49 It isn't standing at all. It was really a question
00:22:49 --> 00:22:51 of whether the statute gave the plaintiff a cause
00:22:51 --> 00:22:53 of action. That's exactly the covenant question
00:22:53 --> 00:22:56 asked about a statute. So let's take all of it.
00:22:57 --> 00:22:59 Lujan, TransUnion, the APA, zone of interests,
00:22:59 --> 00:23:02 associational standing. And look at those questions.
00:23:02 --> 00:23:04 Regulated entities almost always have standing.
00:23:04 --> 00:23:07 The company a rule applies to satisfies Lujan
00:23:07 --> 00:23:09 without breaking a sweat. It's concrete because
00:23:09 --> 00:23:11 they have to do something or stop doing something
00:23:11 --> 00:23:14 or pay something. Causation is direct and redressability
00:23:14 --> 00:23:16 is clean. So they walk into the courthouse with
00:23:16 --> 00:23:18 standing already established, and they don't
00:23:18 --> 00:23:21 even have to argue for it. Right. And the beneficiary
00:23:21 --> 00:23:24 of the rule is almost the opposite. The person who'd
00:23:24 --> 00:23:26 breathe cleaner air if EPA enforced, or the community
00:23:26 --> 00:23:28 that would have safer drinking water, or the
00:23:28 --> 00:23:31 worker who'd have safer conditions if OSHA pursued
00:23:31 --> 00:23:34 a violation. We have diffuse injuries, we have
00:23:34 --> 00:23:36 causation running through third parties, and
00:23:36 --> 00:23:39 we have uncertain redressability. And none of
00:23:39 --> 00:23:41 those three failures is about whether the agency
00:23:41 --> 00:23:43 was wrong. They're all about the shape of the
00:23:43 --> 00:23:46 harm. Right. Each of Lujan's elements on its own
00:23:46 --> 00:23:49 is reasonable. Applied together in a regulatory
00:23:49 --> 00:23:52 context, they systematically favor one kind of
00:23:52 --> 00:23:54 plaintiff. And the kind of plaintiff they favor
00:23:54 --> 00:23:57 happens to be the one most likely to want regulations
00:23:57 --> 00:24:01 limited. So let's take the doctrine's side for
00:24:01 --> 00:24:04 a minute, though. It's trying to make sure plaintiffs
00:24:04 --> 00:24:06 have real injuries. That doesn't seem partisan
00:24:06 --> 00:24:09 to me. That's just basic adjudication. You shouldn't
00:24:09 --> 00:24:11 be able to sue over things that don't affect
00:24:11 --> 00:24:14 you. Sure, the doctrine isn't necessarily trying
00:24:14 --> 00:24:16 to be one-sided. It's trying to do something
00:24:16 --> 00:24:19 neutral. But neutral procedural rules can definitely
00:24:19 --> 00:24:21 have non-neutral effects. The question isn't
00:24:21 --> 00:24:23 whether it intends to tilt one way. It's whether
00:24:23 --> 00:24:26 it produces a tilt. And the pattern is striking.
00:24:26 --> 00:24:28 Who's been bringing the major administrative
00:24:28 --> 00:24:30 law challenges that have changed doctrine in
00:24:30 --> 00:24:32 recent years? Loper Bright was a fishing company.
00:24:32 --> 00:24:35 West Virginia v. EPA was state governments and coal
00:24:35 --> 00:24:38 companies. Sackett v. EPA was a couple building a
00:24:38 --> 00:24:40 house. SEC v. Jarkesy, he was a hedge fund manager.
00:24:41 --> 00:24:44 Most of these recent cases where the agency lost
00:24:44 --> 00:24:46 were brought by a regulated party challenging
00:24:46 --> 00:24:50 agency action directed at them. Not all. The
00:24:50 --> 00:24:52 DACA case in 2020 and the census citizenship
00:24:52 --> 00:24:55 question in 2019 were agency losses brought
00:24:55 --> 00:24:58 by DACA recipients, states and advocacy groups.
00:24:58 --> 00:25:01 But the pattern is pretty clear. And that's not
00:25:01 --> 00:25:04 random. And it isn't that beneficiaries lack
00:25:04 --> 00:25:07 grievances. They can't reliably get into court
00:25:07 --> 00:25:10 with them. Right. The same doctrine that lets
00:25:10 --> 00:25:12 the fishing companies sue often keeps the people
00:25:12 --> 00:25:14 who benefit from environmental enforcement from
00:25:14 --> 00:25:18 suing the agency. Though Massachusetts v. EPA
00:25:18 --> 00:25:20 cuts the other way, a state suing for environmental
00:25:20 --> 00:25:23 protection and winning the standing fight. Right.
00:25:23 --> 00:25:25 It was definitely a win for the beneficiary side,
00:25:25 --> 00:25:28 but a rare one. The Court bent the doctrine to
00:25:28 --> 00:25:30 let the state sue about climate. That's the whole
00:25:30 --> 00:25:32 reason for the extra special state standing.
00:25:33 --> 00:25:35 And notice how it's been treated since. Lower
00:25:35 --> 00:25:37 courts read it narrowly, and the Court hasn't
00:25:37 --> 00:25:39 extended its logic to non-state plaintiffs.
00:25:39 --> 00:25:42 It's pretty much the exception that proves the
00:25:42 --> 00:25:44 rule. And the doctrine's been tightening, not
00:25:44 --> 00:25:47 loosening. Right. Although not in a straight
00:25:47 --> 00:25:49 line. In Friends of the Earth v. Laidlaw in
00:25:49 --> 00:25:51 2000, people who'd stopped fishing and swimming
00:25:51 --> 00:25:54 in a river that a plant was polluting had standing
00:25:54 --> 00:25:56 to sue the polluter. The ballroom majority itself
00:25:56 --> 00:25:59 cited it. But several of the Court's recent standing
00:25:59 --> 00:26:01 decisions have turned away plaintiffs trying
00:26:01 --> 00:26:03 to force government action. In FDA v. Alliance
00:26:03 --> 00:26:06 for Hippocratic Medicine in 2024, doctors were
00:26:06 --> 00:26:08 challenging FDA's loosening of the rules on abortion
00:26:08 --> 00:26:10 pills, and the Court said they lacked standing.
00:26:11 --> 00:26:13 And that's the case the ballroom majority leaned
00:26:13 --> 00:26:15 on hardest. So when somebody asks why nobody
00:26:15 --> 00:26:18 holds an agency accountable for failing to enforce,
00:26:19 --> 00:26:22 part of the answer is that nobody can. Right.
00:26:22 --> 00:26:25 In court, for that particular failure, no. Agencies
00:26:25 --> 00:26:27 stay accountable in other ways, through Congress,
00:26:27 --> 00:26:29 through the president, through the press. But
00:26:29 --> 00:26:31 judicial accountability for failing to act or
00:26:31 --> 00:26:34 for under-enforcing is largely unavailable to
00:26:34 --> 00:26:36 the people the enforcement was for. The courthouse
00:26:36 --> 00:26:38 doors open on one side of the regulatory dispute
00:26:38 --> 00:26:41 and mostly shut on the other. It isn't sorting
00:26:41 --> 00:26:43 on whether the agency got anything wrong. The
00:26:43 --> 00:26:45 fishing company and the man downstream from the
00:26:45 --> 00:26:47 factory might both be right about what the agency
00:26:47 --> 00:26:50 is doing. Or they might both be wrong. Standing
00:26:50 --> 00:26:53 never reaches that. It sorts on the harm. How
00:26:53 --> 00:26:56 concentrated, how traceable, how reliably an
00:26:56 --> 00:27:01 order would fix it. So I want to take a 10-
00:27:01 --> 00:27:04 foot view of this as well and bring in another
00:27:04 --> 00:27:06 doctrine that we haven't really talked a lot
00:27:06 --> 00:27:09 about. And that's sovereign immunity. Right.
00:27:09 --> 00:27:12 So the idea that states get to choose who gets
00:27:12 --> 00:27:16 to sue them is what's embedded into the Administrative
00:27:16 --> 00:27:19 Procedure Act. Right. So in deciding how that's
00:27:19 --> 00:27:22 enforced, that's really what standing is doing.
00:27:22 --> 00:27:25 Is that a fair way of thinking about this problem?
00:27:26 --> 00:27:28 Yes and no. Yes, to the extent that we're thinking
00:27:28 --> 00:27:32 about people suing agencies for acting or failing
00:27:32 --> 00:27:36 to act. But we hit the same kind of constitutional
00:27:36 --> 00:27:38 requirements regardless of who's bringing the
00:27:38 --> 00:27:40 suit and regardless of whether the government
00:27:40 --> 00:27:43 is a party. So this season's questions really
00:27:43 --> 00:27:45 come out about as cleanly here as they're going
00:27:45 --> 00:27:49 to. Right. Whose hand is on it? The judiciary's,
00:27:49 --> 00:27:52 nearly all of it, and recently. What is it doing?
00:27:52 --> 00:27:54 It's deciding which kind of injury a federal
00:27:54 --> 00:27:58 court hears. So "rigged" would be wrong, but "neutral"
00:27:58 --> 00:28:01 is also pretty much just as wrong. Next week,
00:28:01 --> 00:28:03 we will stay at it. We'll do the ballroom case,
00:28:03 --> 00:28:06 then finality. Even with standing, the APA generally
00:28:06 --> 00:28:09 makes you wait for final agency action. And final
00:28:09 --> 00:28:12 here means more than done. So that does it for
00:28:12 --> 00:28:14 today's episode of Administrative Remedies. Thank
00:28:14 --> 00:28:17 you for joining us today. Please, if you enjoy
00:28:17 --> 00:28:19 this podcast, enjoy this episode, give us a like
00:28:19 --> 00:28:23 on Spotify, iTunes, or whatever platform you're
00:28:23 --> 00:28:26 listening on. And be sure to tune in next time
00:28:26 --> 00:28:28 where we'll continue to dive into the contours
00:28:28 --> 00:28:30 of administrative law. Because remember, you
00:28:30 --> 00:28:31 can't fix what you don't understand.