QUESTION: If I'm understanding the discussion from yesterday's class correctly, Scalia's opinion in Lujan rejects the ability of Congress to confer standing to all citizens to sue for a violation of a given law -- in effect saying that individuals must have standing in a more traditional sense (i.e., injury in fact, causation, and redressability). Note 8 points out that Scalia doesn't have a majority for this opinion and that Kennedy and Souter's concurrence would allow citizen suits if Congress is specific about the nature of the injury. The discussion in class today seemed to suggest that Scalia's approach was the accepted norm. Is that the case?
ANSWER: I think, in a sense, both of those ideas are correct -- or at least we can make sense of them together. (Kennedy, after all, joined the majority opinion in Lujan.) How can we do so? I think all of the majority in Lujan agreed that Congress cannot simply confer an injury in fact on anyone it pleases, regardless of the nature of that injury. There are some constitutional limits. (Scalia sees those limits differently than Kennedy and Souter, but all three agree that there are limits, and that they were passed by the citizen suit provision in the ESA.)
That said, Congress can indeed create rights, the violation of which will constitute an injury in fact, even though no such injury would exist but for Congress's statute. It is a matter of degree. The citizen suit provision in Lujan went too far, as it literally conferred standing on everyone, no matter their connection to the allegedly illegal conduct. The "injury" was too diffuse and too abstract to meet the requirements of Article III. But other citizen suit provisions (such as that upheld a few years later in FEC v. Akins) could be more narrowly drawn, conferring standing on persons with a more clearly concrete or particularized interest in the allegedly unlawful action.
In short, I think both the majority opinion in Lujan, as well as Kennedy's concurrence, are consistent with the present state of the law. The trick lies in seeing the difference between Lujan and a case like Akins, where the Court held that the plaintiffs had standing.