QUESTION: I know we discussed the idea of why the Supreme Court did not agree with Congress's "citizen-suit" provision because it did not specify a direct individual injury. But can Congress create standing if it is more careful to elaborate on actual injury? For instance, in the ESA case the injury was too broad, but if it was more specific, perhaps saying that any scientist injured by this procedural defect, someone whose livelihood is actually based on the availability of endangered species then would the Court have recognized that type of "citizen suit?"
ANSWER: The short answer is yes, potentially. The longer answer is that, as Lujan shows, Congress cannot simply deem anyone to have standing by statutorily conferring an injury on them. That is not enough. The Constitutional requirement that the plaintiff have suffered an injury in fact cannot be answered purely by reference to what Congress says. But, as you rightly note (and Justice Kennedy's concurrence is critical on this point), Congress can create standing where it otherwise would not have existed. Congress can identify injuries and chains of causation that had previously been unrecognized, such that a plaintiff would (when considering the statute) have an injury in fact. It is a matter of degree. To the Court, the ESA citizen-suit provision, at least as applied to Kelley and Skillbread, went too far. It did not require that their injuries be particularized in any way. But in other cases, where the citizen suit provision is limited to persons more directly or particularly affected by the allegedly unlawful conduct, it can be sufficient to confer standing.
QUESTION: In Ex parte McCardle, since the Supreme Court had jurisdiction all the way up until Congress repealed the Act of February 1867, could that be a case that is then determined to be moot, since there is no issue -- the Supreme Court cannot hear the case anymore due to a lack of jurisdiction -- or is that expanding the idea of mootness too far?
ANSWER: It is quite similar to the idea of mootness, but it is technically different. When a case is moot, there is some reason that the underlying dispute on the merits is no longer appropriate for judicial decision -- for instance, the plaintiff's injury no longer exists, or the injury is no longer reddressable. The court must dismiss the case because it is no longer justiciable. In McCardle, the underlying merits issue was not moot; had the Court been able to reach the issue, the injury was still there and was reddressable. Rather, the problem was that the Court simply could not reach the merits issue because Congress had removed the Court's jurisdiction over the case.