Zivotofsky and Spokeo

by Andrew Hessick — Monday, May 18, 2015@andyhessick

Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term.

The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power over passports. In 2002, Congress enacted the Foreign Relations Authorization Act, § 214 of which says that U.S. citizens born in Jerusalem can request to have their passports say “Israel” for their birthplace. But the President hasn’t followed that law. Instead, the President lists “Jerusalem” as the birthplace of U.S. citizens born there. Zivotofsky, who was born in Jerusalem, has sued to enforce his §214 right to have the passport say “Israel.”

Spokeo is a standing case, about which I’ve posted before. A plaintiff has Article III standing only if he suffers an “injury in fact.” The question in Spokeo is whether the violation of a statutory right (in Spokeo, the right under the Fair Credit Reporting Act not to have inaccurate information posted online) satisfies this injury in fact test, even if that violation does not result in any other harm.

How does Spokeo bear on Zivotofsky? Will argues that Zivotofsky’s theory for standing is that he has suffered a violation of his §214 rights, and therefore that the issue in Spokeo is presented inZivotofsky. Will’s column has generated a lot of standing discussion, such as the one recounted at Prawfsblawg.

It’s true that one argument that Zivotofsky pressed for standing was the violation of his § 214 rights. That was the ground on which the D.C. Circuit found standing. But that’s not Zivotofsky’s only standing argument. He also claimed factual harm. He said listing “Jerusalem” instead of “Israel” causes him psychological harm and potential reputational harm. That injury may not seem like much, but it is real enough, and the Supreme Court says that even a “trifle” can support standing.

One might think that emotional harms should not suffice for standing. Why should I have standing to sue John if I’m upset that he punched Max? But sometimes emotional harms do suffice. For example, many cases base standing on the aesthetic harm resulting from being deprived of the ability to see wildlife. That harm is the emotional suffering from the loss of enjoyment of the wildlife. What matters is whether the emotional harm involves a cognizable right.

Zivotofsky’s emotional harm does involve a cognizable right. Section 214 creates a right to have the passport say “Israel.” Lujan v. Defenders of Wildlife says that Congress can create standing by making legally cognizable factual injuries that would otherwise be inadequate for standing. So, even if we think distress at the content of a passport should not support standing, the statute probably makes it enough under Lujan. (This is a little slippery because Congress has not said “emotional harm is cognizable,” but the Court has not required that level of precision.)

As Will notes, the biggest problem with this injury theory is that it is “too speculative.” The government made that argument below, contending that because Zivotofsky was only three when suit was filed, he did not have the capacity to be upset about the passport. But that is a factual question; it may be true that Zivotofsky was affected by the passport, despite being so young. More important, it may be we are willing to assume emotional harm or to say that the actual injury was the indignity of having a passport listing Jerusalem as the birthplace (instead of the emotional harm resulting from it). One would think that if a statute directed that a racial slur be used to refer to minorities, a three-year old would have standing to challenge it, even if he did not understand it.

In short, I don’t think that the Court needs to resolve the Spokeo issue to find standing in Zivotofsky.

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