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Frank remarked, Congress "can constitutionally authorize ... the Attorney General, to bring a proceeding to prevent another official from acting in violation of his statutory powers; for then an actual controversy exists ...."003 Again, the power to punish "delinquency of officers” is taken for granted, and and a criminal prosecution under such a statute would unquestionably constitute a "case."666 A criminal prosecution against a delinquent official, and an injunctive suit by the Attorney General to halt illegal conduct are but varying means of achieving the same objective: compliance with law.co Congress no less than the Attorney General may insist on executive compliance with law. Finally, it needs to be remembered that "an action against a recalcitrant official to force him to perform a statutory duty ... is not [by a convenient fiction) a suit against the government"607 but a suit against a wrongdoer in his "individual" capacity. Were Congress to charge that an official is wrongfully withholding information to which it is constitutionally entitled, the official can be viewed as a wrongdoer who is "stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct."008 A suit between such an "individual” and an adversary officer should plainly present a "case or controversy."

B. Standing to Sue

When we turn from "case or controversy" to "standing to sue" the scene shifts from a constitutional imperative to a judge-made rule unmentioned either in the common law or in the Constitution and which, in its present sophisticated form, is of relatively recent origin.se The Supreme Court, however, has said that “the requirement of standing is often used to describe the constitutional limita

pelled to exccute their authority in accordance with law." Sce also McMullen v. Person, 102 Mich. 608 (1894); State v. Robinson, 112 N.W. 269, 272 (Minn. 1907); State v. Cunningham, 81 Wisc. 440, 51 N.W. 724 (1892). In the federal domain, the Attorney General may bring suit "by virtue of his office.” United States v. San Jacinto Tin Co., 125 U.S. 273, 280, 284 (1888); Sanitary District v. United States, 266 U.S. 405, 426 (1925).

603 Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943). See Reade v. Ewing, 205 F.2d 630, 632 (2d Cir. 1953).

664 Ex parle Siebold, 100 U.S. 371, 387 (1879): "[If) Congress bas power to make regulations it must have the power to enforce them, not only by punishing the delinquency of officers.

663 ICC v. Brimson, 154 U.S. 447, 486 (1894).
000 Ibid.
007 Codray v. Brownell, 207 F.2d 610, 613 (D.C. Cir. 1953).
668 Er parte Young, 209 U.S. 123, 160 (1908). Scc note 326 supro.

609 Jaffc 1270, states that he encountered "no case before 1807 in which the standing of the plaintiff is mootcd. ..." And the standing of a private individual to enforce a "public right," he found, was first squarely presented in 1897. Id. at 1271-72.

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tion on the jurisdiction of this Court to 'cascs' and 'controversies","470 and we have been told to look to the business of the "courts of Westminster when the Constitution was framed” in order to determine the scope both of “justiciable controversy” and “standing to

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So varied are the many meanings ascribed to "jurisdiction” that the addition of another should be avoided unless inescapable. Analytical precision can only be advanced when different concepts are expressed by different terms, when a double meaning is not ascribed to one word if it is capable of being shared by two.672 Such truisms would scarcely bear repetition did they not serve to raise the question whether "justiciable controversy" and "standing to sue" are inextricably intertwined. I suggest that they are not, that they differ in origin, and meaningful consequences flow from the differentiation. It is simpler to confine constitutional "jurisdiction" to the power of a federal court to entertain a "case or controversy,” reserving "standing" for the right of a litigant to invoke the court's aid, i.e., his capacity to sue.673 Such a discrimination has already been made by the Supreme Court in Tileston v. Ullman:

Since the appeal must be dismissed on the ground that appellant has no standing to litigate the constitutional question ... it is unnecessary to consider whether the record shows the existence of a genuine case or controversy essential to the exercise of the jurisdiction of this court.674

670 Barrows v. Jackson, 346 U.S. 249, 255 (1953). A recent commentator states that "standing to suc is an element of the federal constitutional concept of 'case or controversy'. ." WRICÚT 36. Scc also HART & WECHSLER 1425, index "Standing to Litigate" under “Cascs and Controversics." Scc also Pennsylvania R.R. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964) ("Allegation of a legally protected right is a constitutional predicate of standing to attack government action.")

671 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring). He regards "standing" as a "limitation on the judicial Power of the United States.'Ibid.

672 For example, if, as Mr. Justice Frankfurter states, "the simplest application of the concept of 'standing' is to situations in which there is no real controversy between the parties," id. at 151, why does it not suffice to say simply that there is no "case or controversy," without which the court has no power to entertain the cause.

673 In a searching analysis in another field, Professor Ehrenzweig likewise differcntiates the jurisdiction of a court over the subject matter-the power confided by the state to decide in the premises, from the capacity of a party to sue. EHRENZWEIC, CONFLICT OF LAWS, 35, 71, 72, 120 (1962). Capacity :5 sue is of course muluform. It was a threshhold question in Osborn v. Bank oi the United States, 9 Wheat. (22 U.S.) 738, 823 (1824), where Marshall, C.J., first inquired "Es this lcgal cntity a right to sue? Has it a right to come . . . into any court?”

674 318 U.S. 44, 46 (1943). On the other hand, in Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 289 (1928), there was “no lack of a substantial interest of the plaintiff in the question ... (standing)." But Mr. Justice Brandeis concluded that "still the proceeding is not a case or controversy within the mcaning of Article III. ..."

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673

That "case or controversy" and "standing to sue" are not interchangeable terms will emerge from examination of standing in two of its important aspects: whether a litigant has suffered an injury that amounts to a "legal wrong," and whether he is invoking a wrong donc to another rather than his own. Of that aspect of standing which pertains to attempts to assert the right of another, the Supreme Court said in a constitutional context that judicial abstention rests not on “principles ordained by the Constitution" but rather on "rule(s) of practice," exceptions to which have been made "where there are weighty countervailing policies."676 The more vexing aspect of standing which is identified with the absence of legal injury (damnum absque injuria) 077 corresponds to failure to state a cause of action. At common law a plaintiff might allege a real enough injury, presenting an actual dispute between adverse litigants—the core of "case or controversy"—and yet fail because his cause fell outside the existing writs.078 So, contracts under seal

678 3 DAVIS 226-238.

076 United States v. Raines, 362 U.S. 17, 22 (1960). To the same effect, sce Brandcis, J., quoted by Frankfurter, J., in Poc v. Ullman, 367 U.S. 497, 503 (1961).

077 In the classic fcdcral cxample, Tennesscc Elcc. Power Co. v. TVA, 306 U.S. 118 (1939), 18 power companies sought to enjoin operations of the TVA, asserting a lack of constitutional power. The Court held that the plaintiffs lackcd standing because the "damage conscqucnt on competition, otherwise lawsul, is in such circumstances damnum absque injuris. . .," Id. at 140. (Emphasis added.)

Professor Davis' criticism secms to be unanswerablc: "The plaintiffs were asserting that the competition was unlawful, and the Court was denying them an opportunity to show thc unlawfulness. The question was not whether the plaintiffs had standing to challenge lawful compctition, but whether they had standing to challenge compclition, the lawfulness of which was al issue,” 3 Davis 217. (Emphasis added.)

Professor Bickel justly remarked that "the question whcther the Constitution protects against some forms of competition cannot be assumed away. ..." Bicke! 40. CJ. WRIGIT 38.

The statement in Pennsylvania R.R. v. Dillon, 335 F.2d 292, 295 (D.C. Cir. 1964) that "mcrc cconomic competition made possible by governmental action (even if allegedly illegal) does not give standing to suc ... Tennessec Elec. Power Co. v. TVA, 306 U.S. 118 ..." sccms to me mistaken. Tennessce assumed that the competition was legal. How is one to prove an "allcgation" of illegal competition is "standing" is to bar the way? That there is a right to protection from "unlawful" competition was reaffirmed in Alabama Power Co. v. Ickcs, 302 U.S. 464, 484-85 (1938), which recognized the protection against "unlawful" competition afforded by Frost v. Corporation Comm'n, 278 U.S. 515, 521 (1929). Indecd, the District of Columbia court itself gave protection from "unlawful” competition in Whitney Nat'l Bank v. Bank of New Orleans & Trust Co., 323 F.2d 290, 298-99 (D.C. Cir. 1903), rev'd on other grounds, 379 U.S. 411 (1965).

Factually, the Dillon case turned on the court's refusal to read a statute which sought "to encourage resort to domestic shipyards” as exhibiting a Congressional intention "to insulate coasiwisc carriers from other domestic competition." Id. at 295. On this construction, the statute carved no exception from the norm--free compctition, and such competition therefore invaded no "legal right."

678 Compare “When Congress transmutes a moral obligation into a legal one by specially consenting : suit, it authorizes the tribunal . . . to periorm a

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were enforced in actions of covenant from earlicst times whereas a parol contract had to wait for enforcement until Slade's case adapted Assumpsit in 1603.070 Until 1603 there could be a real cnough “controversy," an actual dispute between truly adverse parties arising out of an oral contract, and yet no remedy. It was this situation that was summed up in damnum absquc injuria, an injury for which the law at the moment provided no remedy.

True, the courts of Westminster had no “jurisdiction” of a cause "save so far as by delegation from the King, that court was empowered to take cognizance of the particular controversy. But a “jurisdictional” limitation of this nature never found "any place in our system":

In England, the sovereign was the source of all authority, and the courts were his courts, and had no right to proceed in any cause without his authority and permission. It was the principal function of the original writ to give that permission. With us, on the contrary, the judicial power has always in fact been an independent coordinate branch of government. . . . It never required any special license or authority from any executive, by way of original writ or otherwise, to exercise its functions.681

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With us, in a word, failure to state a cause of action is not jurisdictional, it "calls for a judgment on the merits and not for a dismissal for want of jurisdiction.

"Remedies" were not, of course, frozen by the Constitution to those extant in 1789. Marshall laid claim in Marbury v. Madison to the common law power to fashion a remedy for the protection of every right.083 Congress is not confined to traditional forms or remedies,984 and over the years it has conferred upon the courts an array of remedies unknown to the common law. It would

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judicial function” within the meaning of Article III. Glidden Co. v. Zdanok, 370 U.S. 530, 567 (1962).

679 Berger, From Hostage to Contract, 35 ILL. L. Rev. 281, 289 n.209 (1940). Ames 55-56; KEIGWIN 24.

680 KEIGWIN 11.

881 Parsons v. Hill, 15 App. D.C. 532, 541 (1900). See also Philadelphia B. & W. R.R. v. Gatta, 27 Del. 38, 42-47, 85 Atl. 721, 724-25 (1913); KEIGWIN 11.

882 Bell v. Hood, 327 U.S. 678, 682 (1946). See also Romero v. International Terminal Operating Co., 358 U.S. 354, 359 (1959). Mr. Justice Frankfurter, dissenting in Smith v. Sperling, 354 U.S. 91, 98 (1957), objccted that the Court was "confounding the requirements for establishing a substantive cause of action with the requirements of diversity jurisdiction.” (stockholder's derivative action). In sum, "a court may have jurisdiction over the subject matter of an action though thc complaint thercin docs not state a claim upon which relief can be granted.” Wciss v. Los Angeles Broadcasting Co., 163 F.2d 313, 314 (9th Cir. 1947).

683 i Cranch (5 U.S.) 137, 163 (1803). 884 Actna Lisc Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937). 086 Compare such new remedies as the Federal Declaratory Judgment Act, 1965)

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scarcely be urged that those who were given newly created legal rights have no standing because the courts of Westminster had not enforced such rights in 1789. To the contrary, the Supreme Court expressly recognized the right of Congress to confer standing upon one who could assert no "legal right" himself as representative of the public interest.08 "Casc or controversy” has at times been applied in a Procrustean manner but at least in deference, mistaken or otherwise, to an express constitutional mandate. In the absence of express compulsion, that experience should make us wary of limiting "standing to sue" to the business of the "courts of Westminster when the Constitution was framed.687 In my view, "standing to sue" is not a constitutional limitation such as is "case or controversy"; it can be and has been enlarged beyond the 1789 boundaries. And with respect to such restrictions as "finality," "directness, or "rights of another," they are judge-made rules of practice which the courts may nodify as circumstances may require.

This is not meant to suggest that standing to attack official misconduct was narrowly confined at common law, for the contrary is the casc. Professor Jalfc's valuable study of standing of privato

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and thc Fair Labor Standards Act, which authorizes thc Sccrctary of Labor to suc for recovery of minimum wages on behall of an employec and to make a turn over of the recovery. Section 1b, 52 Stat. 1069 (1938), 29 U.S.C. $ 216 (1959). Onc nccd only mention such "rights" as were created by the Federal Employers Liability Act.

680 Scripps-Howard Radio v. FCC, 316 U.S. 4, 14 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470-77 (1940). Scc 3 Davis 220-22. Mr. Justicc Frankfurter cites the Sanders casc for thc proposition that: “Adverse personal interest, even of such an indirect sort as ariscs from compctition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests." Joint Anti-Fascist Comm. v. · McGrath, 341 U.S. 123, 151 (1951). For mc the "constitutional standards of justiciability" are those of "casc or controversy"; if those are satisfied there is no further constitutional "limitation” on crcation of new remedies. The phrase "adverse personal interest" also is unduly restrictive; it would bar the suit by the Secretary of Labor to recover minimum wages on behalf of an employce, $ 16, 52 Slat. 1069 (1938), 29 U.S.C. $ 216 (1959), for the Sccrctary has no “personal" interest; nor have the various officials who have been permitted to sue to protect their “official functions." as distinguished from "personal interest." Sec text accompanying notes 701-04 infra.

My studies have led me to agree with Professor Davis: "The federal courts cannot justify their law of standing by saying that the 'case' or 'controversy' requirement of Article III of the Constitution requires the artificiality and the complexity. Nothing in the Constitution-except what the Supreme Court bas put there-requires a departure from the simplc and natural proposition that one who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable.” 3 Davis 292.

687 In meeting the objection that the Constitution did not establish the common Law, Governor Randolph told the Virginia Ratification Convention that "thc wisdom of the Convention is displayed by its omission, because the common law ought not to be immutably fixed. ... Its defective parts may be altered . . . and niodificd as the convenience of the public may requirc it." 3 Elliot's DEBATES 469-70 (1941). For a similar remark by Nicholas, see id. at 451.

688 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 153-56 (1951) (Frankfurter, J., concurring).

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