Yesterday, Leah and Kyle published an insightful post on this site about the ongoing border wall litigation. There, they identified key flaws in the Supreme Court's apparent suggestion that the plaintiffs lack a cause of action, or any method of obtaining judicial redress, even if President Trump did break the law and thereby injured them. As Leah and Kyle also noted, the Court's border wall ruling is consistent with (and perhaps exemplary of) its overarching approach to rights and remedies in recent years. Time and again, the Court has created artificial and unjustifiable barriers to vindicating constitutional rights—even where plaintiffs convincingly show that their rights were violated. This trend "allows the Court to practically and effectively authorize unlawful government action and restrict rights ... without having to be accountable for doing so." 

As Leah has persuasively demonstrated, there are many dimensions to the Supreme Court's assault on remedies. Not all of these rulings are related in obvious ways. Many are highly technical. But in the aggregate, they play a crucial role in narrowing the circumstances under which lawlessness can be called to account in court. 

Especially against that dispiriting background, it is important to recognize where the Supreme Court has affirmatively rejected efforts to interpose barriers between plaintiffs with Article III standing and judicial enforcement of the Constitution. 

Consider, for example, the so-called "zone-of-interests" test, which forecloses suit where a plaintiff's interests are "marginally related to or inconsistent with the purposes implicit” in the relevant law. Known largely to diehard fed-courts and administrative law nerds, the zone-of-interests test was born in an APA context and has virtually always been applied in statutory and regulatory cases. Only once—in a 40-year-old footnote—has the Supreme Court applied it to a constitutional claim. See Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 321 n.3 (1977). Since then, the Supreme  Court has conspicuously failed to apply this test in constitutional cases, even when urged to do so by dissenters. E.g., Wyoming v. Oklahoma, 502 U.S. 437, 469-71 (1992). And in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the Supreme Court reconceptualized the test as focused entirely on legislative intent and statutory interpretation. This understanding is obviously inconsistent with the test’s application to suits that arise not from statutory causes of action, but instead from the Judiciary’s ancient, equitable power to enjoin unconstitutional conduct. 

Nonetheless, President Trump and DOJ lawyers have seized on the zone-of-interests test as a weapon against constitutional claims. It features prominently in their border wall papers at the Supreme Court. It has also loomed large in President Trump's arguments that nobody can hold him accountable in court for violating the Emoluments Clauses.

More recently, this issue has arisen in a less politically charged but still vital context: efforts by the Federal Defenders of New York to prevent the Bureau of Prisons (BOP) from violating the Sixth Amendment through a pattern of arbitrary and unjustified closures of attorney visiting at the Metropolitan Detention Center in Brooklyn, NY.

As you may recall, earlier this year a series of humanitarian disasters at the MDC cast attorney access restrictions into stark relief. Represented by lawyers from Kaplan Hecker & Fink LLP (including me, Sean Hecker, Jenna Dabbs, Matthew Craig, and Benjamin White), the Federal Defenders successfully obtained a temporary restraining order requiring the BOP to restore normal attorney visiting. Subsequently, however, a district court denied a preliminary injunction and dismissed the case. It reasoned that the Sixth Amendment right is personal to the accused and that the Federal Defenders therefore failed to show that they were within the Sixth Amendment's zone of interests.

The Federal Defenders appealed that decision to the Second Circuit (again represented by Kaplan Hecker). Their opening brief advances two principal arguments. First, the Federal Defenders contend that the zone-of-interests test does not apply to causes of action in equity seeking to enjoin unconstitutional conduct. Second, they contend that even if the test does apply, they satisfy it. 

Because this analysis may interest our more hardcore readers, and because it bears on an important recent trend in constitutional litigation against the executive branch, I've copied here the Federal Defenders' argument for why a zone-of-interests test should not apply to their constitutional claim. Tomorrow, I will post about the Federal Defenders' argument for why they satisfy the test, which speaks to the core purposes of the Sixth Amendment right to counsel and the role of public defenders.  

(Disclaimer: As noted above, I am among counsel to the Federal Defenders in this appeal.)  

I. The District Court Erred in Dismissing the Federal Defenders’ Sixth Amendment Claim

When the requirements of Article III are met, “a federal court’s obligation to hear and decide a case is virtually unflagging.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (internal quotation marks omitted). That obligation applies with full force where plaintiffs invoke the court’s traditional equitable power to enjoin unconstitutional conduct by federal officials. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[I]njunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”). Here, the district court rightly determined that Defendants’ alleged violations of the Sixth Amendment have in fact injured the Federal Defenders. But it nonetheless held that there is no remedy at hand for this unconstitutional conduct—opining that the Federal Defenders lack a cause of action because they do not satisfy the zone-of-interests test.

This analysis is wrong even on its own terms. The Sixth Amendment’s zone of interests unquestionably encompasses efforts by the Federal Defenders to protect their existing attorney-client relationships and comply with their own constitutional obligations. At the very least, these interests are not “marginally related to” or “inconsistent with the purposes implicit in” the Sixth Amendment. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“Match-E”). The district court’s more basic error, however, was to embark on this inquiry in the first place. Recent Supreme Court guidance confirms that the zone-of-interests test simply does not apply to the cause of action invoked by the Federal Defenders—a suit in equity to enjoin unconstitutional conduct by federal officials. 

A. The Zone-of-Interests Test Does Not Apply

For most of its short lifespan, the zone-of-interests test has been derided as opaque, inconsistently applied, and lacking any firm jurisprudential basis. See Laurence H. Tribe, American Constitutional Law 446 (3d ed. 2000) (“The zone-of-interests test is a doctrine of uneven application and uncertain meaning.”); Kenneth Culp David, Administrative Law of the Seventies § 22.02-11, at 509 (Supp. 1976);Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1731 (1975); Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425, 475 (1974). The Supreme Court has recently brought a measure of discipline to the test, and in so doing has confirmed its inapplicability to lawsuits like this one.

1. The Origins and Early Life of the Zone-of-Interests Test

The zone-of-interests test was first articulated in cases arising from challenges to administrative action. There, it was described as part of the statutory standing inquiry for APA claims—specifically, as a gloss on Section 702 of the APA, which provides a right of review to “[a] person . . . adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see, e.g., Barlow v. Collins, 397 U.S. 159, 164-65 (1970); Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153-54 (1970). However, the Supreme Court referred to the zone-of-interests test as more generally addressing “the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Camp, 397 U.S. at 153.

Over the following decades, the Supreme Court only once applied the test in a constitutional case: in a footnote, it remarked that a Dormant Commerce Clause challenge satisfied the zone-of-interests test. See Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977). Elsewhere, it noted the existence of the test, but without applying it to constitutional claims. See, e.g., Singleton v. Wulff, 428 U.S. 106 (1976); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227 n.16 (1974). In 1982, in an Establishment Clause case, the Court again noted the test (without applying it) while describing “prudential principles that bear on the question of standing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982). Reflecting back on its zone-of-interests decisions, the Court observed in Clarke v. Securities Industry Association that “[t]he principal cases in which the ‘zone of interest’ test has been applied are those involving claims under the APA, and the test is most usefully understood as a gloss on the meaning of § 702.” 479 U.S. 388, 400 n.16 (1987). The Court added that the zone-of-interest test applicable to APA claims is not “a test of universal application” and would not govern “all statutory and constitutional claims.” Id.

From 1987 through 2014, the Supreme Court invoked the zone-of-interests test several times, but did not apply it in a single constitutional case. See, e.g., Nat’l Credit Union Admin. v. First Nat. Bank & Tr. Co., 522 U.S. 479, 488–95 (1998) (applying the test in a statutory case); Bennett v. Spear, 520 U.S. 154, 162-66 (1997) (same); Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 524-28 (1991) (same). More striking, the Supreme Court ignored the zone-of-interests test where it seemed plainly applicable. For instance, in Wyoming v. Oklahoma, the Supreme Court did not apply the test at all to a Dormant Commerce Clause lawsuit—even after Justice Scalia criticized the majority for “abandoning the zone-of-interests test.” 502 U.S. 437, 473 (1992) (Scalia, J., dissenting). Continuing this trend, the Court later allowed farmers, a city, two hospital associations, a hospital, and a farmer’s cooperative to attack the Line Item Veto Act under the Presentment Clause—even though it is hard to see how these plaintiffs would satisfy the test had it applied. See Clinton v. City of New York, 524 U.S. 417, 425 (1998).

This pattern led influential commentators and judges to reflect more deeply on the doctrinal basis for the zone-of-interests test—and to conclude that applying the test makes little sense in constitutional cases. For example, Professor Tribe noted that “in constitutional litigation, the test has been employed somewhat sporadically” and should be subsumed within “third-party standing analysis.” Tribe, American Constitutional Law 446 (3d ed. 2000). Professor Chemerinsky agreed: “There is a strong argument that the zone of interests test is an additional standing requirement only in cases seeking review of agency decisions under the Administrative Procedure Act.” Chemerinsky, Federal Jurisdiction §2.3 (5th ed. 2007); see also Bradford C. Mank, Prudential Standing and the Dormant Commerce Clause: Why the “Zone of Interests” Test Should Not Apply to Constitutional Cases, 48 Ariz. L. Rev. 23 (2006). In 2013, Judge Silberman concluded that the zone-of-interests test is most properly understood as tied to “the organic statute underlying a complaint and the APA itself.” Ass’n of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667, 676 (D.C. Cir. 2013) (Silberman, J., concurring). Citing Boston Stock Exchange, which involved a “non-statutory cause of action,” Judge Silberman bluntly remarked, “[p]erhaps that decision was simply anomalous.” Id. at 676 n.3.^[1]

2. The Supreme Court’s Decision in Lexmark

Following widespread criticism of the zone-of-interests test—and its weak doctrinal basis—the Supreme Court issued its landmark decision in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). Lexmark brought welcome clarity to zone-of-interests analysis. Recognizing that it had “placed that test under the ‘prudential’ rubric in the past,” the Supreme Court declared that “it does not belong there.” Id. at 127. Instead, Lexmark rejected the very concept of prudential standing—which, as noted above, was the only basis ever offered for applying the test to constitutional claims. See id. at 126 (emphasizing that the doctrine of prudential standing is in serious tension with “the principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging’” (citation omitted)). In an important pivot, Lexmark described the inquiry as focused exclusively on legislative intent: “Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id. at 127 (citations omitted). Quoting Judge Silberman, the Supreme Court added that the key question is whether “this particular class of persons [has] a right to sue under this substantive statute.” Id. (quoting Battery Recyclers, 716 F.3d at 675-76 (Silberman, J., concurring)).

As reconceptualized by Lexmark, the zone-of-interests test turns on “whether [the plaintiff] has a cause of action under the statute.” Id. at 128. Because “the requirement at issue is in reality tied to a particular statute,” the question “is whether the statute grants the plaintiff the cause of action that he asserts.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017). To answer that question, courts “apply traditional principles of statutory interpretation” to “determine the meaning of the congressionally enacted provision creating a cause of action.” Lexmark, 572 U.S. at 128. This undertaking does not involve an exercise of “independent policy judgment” by the Judiciary, but rather seeks to implement Congress’s will regarding its own statutes. Id. (citing Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001)).

3. The Zone-of-Interests Test Following Lexmark

As scholars have recognized, Lexmark’s restatement of the zone-of-interests test cannot be squared with earlier hints that the test may apply to constitutional claims. See Brannon P. Denning & Sarah F. Bothma, Zone-of-Interests Standing in Constitutional Cases After Lexmark, 21 Lewis & Clark L. Rev. 97 (2017) (“If zone-of-interests standing is to be eliminated for statutory claims, or at least has become a ‘straightforward question of statutory interpretation,’then there is little reason to retain it as a limit—prudential or otherwise—in constitutional cases.”).^[2]

Simply put, statutory causes of action differ in fundamental ways from causes of action in equity that seek to enjoin unconstitutional conduct. Statutory causes of action “must be created by Congress,” and “the judicial task is to interpret the statute Congress has passed.” Sandoval, 532 U.S. at 286. In circumstances where plaintiffs seek to rely on acts of Congress, application of the zone-of-interests test helps to ensure that the law operates as intended. Lexmark’s repeated references to legislative purpose, statutory interpretation, and congressionally created causes of action thus make perfect sense as applied to federal statutes. See Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 200-01 (2d Cir. 2014).

But they make no sense in cases like this one. Causes of action in equity to enjoin unconstitutional action do not arise from specific federal statutes. Instead, they “depend on traditional principles of equity jurisdiction.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999). As the Supreme Court has noted, “the ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)); see also Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”). Accordingly, “‘in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.’” Armstrong, 135 S. Ct. at 1384 (quoting Carroll v. Safford, 3 How. 441, 463 (1845)).^[3]

Where plaintiffs do not rely on a statute, but instead invoke a cause of action in equity, it is a category error to apply the zone-of-interests test as articulated in Lexmark. Such lawsuits are not controlled by Congress’s expectations of who should be able to sue. They instead evoke a centuries-old tradition of equity that has never been understood to incorporate the vagaries of a zone-of-interests test, which was invented a few decades ago primarily to govern regulatory litigation. And applying “traditional tools of statutory interpretation” to discern a “zone of interests” makes little sense when the law being interpreted is the Constitution—a document whose framers and ratifiers had no concept that suits to enforce compliance might be subject to an interests-based purposive inquiry invented almost two hundred years later.

The Ninth Circuit recently supported this conclusion in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019). There, plaintiffs challenged a decision by the President to reallocate funds for the construction of a border wall. The plaintiffs presented their claims as constitutional in nature, citing separation of powers principles and the Appropriations Clause. Id. at 688. The Ninth Circuit accepted this characterization and treated the plaintiffs’ claim as “one alleging a constitutional violation.” Id. at 688-89. On that premise, the Court disagreed with the government’s contention that the plaintiffs fell beyond the relevant zone of interests. See id. at 700-704.

The Ninth Circuit began its analysis by emphasizing that “we are doubtful that a zone of interests test applies to Plaintiffs’ equitable cause of action.” Id. at 700; see also id. (“We are doubtful that any zone of interests test applies to Plaintiffs’ equitable cause of action to enjoin a violation of the Appropriations Clause, particularly after Lexmark.”). After discussing the history of equitable relief in ultra vires cases, which had long proceeded without a zone-of-interests test, the Ninth Circuit added that Lexmark was a game-changer for constitutional litigation:

Even if a zone of interests test may have been applied to some cases considering constitutional claims like Plaintiffs’ prior to Lexmark, we think that Lexmark has called into question its continuing applicability to constitutional claims. Lexmark focuses on Congress’s intent in creating statutory causes of action, casting doubt on Defendants’ argument that a zone of interests test has any role to play here, where Plaintiffs’ theory derives from the Constitution. The Court in Lexmark described the purpose of the zone of interests test as being to discern whether a statutory cause of action exists—specifically, “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Because the Constitution was not created by any act of Congress, it is hard to see how the zone of interests test would even apply.

Id. at 701-02 (citation omitted). The Ninth Circuit buttressed this point by observing that in Tennessee Wine & Spirits Retailers Association v. Thomas, 139 S. Ct. 2449 (2019)—a Dormant Commerce Clause case—“the Supreme Court did not even mention the zone of interests test.” Sierra Club, 929 F.3d at 702. Given that the Supreme Court’s only prior application of the test in a constitutional case occurred in another Dormant Commerce Clause case (Boston Stock Exchange), “Tennessee Wine supports the idea that Lexmark has changed the landscape.” Id.^[4]

Ultimately, the Ninth Circuit concluded that even if a zone-of-interests test did apply, it was satisfied. See id. at 703-704. But while Sierra Club does not formally deem the zone-of-interests test irrelevant to constitutional claims post-Lexmark, it issued well-reasoned dicta on that question. And under Ninth Circuit precedent, that dicta is itself binding on future panels, which means that it is now the law of the Ninth Circuit. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003)(holding that reasoned dicta in a panel opinion germane to the resolution of that case constitutes binding circuit law and has the force of precedent).^[5]

No circuit has issued a reasoned opinion post-Lexmark that grapples with this question and comes out the other way. The Fourth Circuit has indicated, in dicta and without any analysis, that a constitutional plaintiff “might” need to satisfy the zone-of-interests test. In re Trump, 928 F.3d 360, 374 (4th Cir. 2019). The Third Circuit has applied the zone-of-interests test to a Tonnage Clause Claim, and the Eleventh Circuit has applied it to a Dormant Commerce Clause Claim, but neither court has actually explained why the test still applies post-Lexmark. See Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1275 (11th Cir. 2018); Maher Terminals, LLC v. Port Auth. of New York & New Jersey, 805 F.3d 98, 108 (3d Cir. 2015). Both cases, moreover, address the issue with reasoning that resembles merits analysis—or third-party standing analysis—far more than it resembles a traditional zone-of-interests inquiry. See Newton, 895 F.3d at 1275 & n.9; Maher, 805 F.3d at 109. Accordingly, neither decision should be accepted by this Court as persuasive authority.

The Second Circuit has yet to address whether causes of action in equity to enjoin unconstitutional conduct remain subject to a zone-of-interests test.^[6] Here, although Defendants did not raise (or brief) that issue, the district court reached the question and effectively held that Lexmark changed nothing. This conclusion was mistaken. Lexmark’s reasoning is irreconcilably inconsistent with the application of a zone-of-interests requirement in constitutional cases like this one. To be clear, that does not throw open the courthouse doors. Plaintiffs must still demonstrate Article III standing—including injury-in-fact, which “helps to ensure that the plaintiff has a ‘personal stake in the outcome of the controversy.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation omitted). But plaintiffs who seek to enjoin unconstitutional conduct—as the Federal Defenders do here—need not show more for their constitutional claims to be decided on the merits.

^[1] In 1987, Judge Bork had similarly emphasized that the zone-of-interests test does not apply in cases challenging ultra vires action, including on constitutional grounds. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987). To explain why, Judge Bork invoked the facts of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): “[W]ere a case like [Youngstown] to arise today, the steel mill owners would not be required to show that their interests fell within the zone of interests of the President’s war powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of those powers.” Id.

^[2] Lexmark is also inconsistent with this Court’s decision in Selevan v. New York Thruway Auth., which applied the zone-of-interests test—as a “prudential standing” limitation—to a Dormant Commerce Clause claim. 584 F.3d 82, 91–92 (2d Cir. 2009). No such prudential standing requirement survives Lexmark.

^[3] Accord Am. Ins. Co. v. Garamendi, 539 U.S. 396 (2003); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978); Hill v. Wallace, 259 U.S. 44 (1922).

^[4] In Sierra Club, the government argued that causes of action in equity are subject to the zone-of-interests test because they are based in a statute—namely, the Judiciary Act of 1789, which “conferred on the federal courts jurisdiction over all suits . . . in equity.” Grupo Mexicano, 527 U.S. at 318. But the Ninth Circuit correctly deemed it “a stretch to conclude that the traditional equitable cause of action to enjoin a constitutional violation was therefore created by statute.” Sierra Club, 929 F.3d at 702 n.25. After all, “the lower federal courts are created entirely by statute, see An Act to Establish the Judicial Courts of the United States §§ 2-6, 1 Stat. 73 (1789), but this does not mean that all constitutional claims filed in a federal district court are really statutory claims. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (recognizing “a cause of action under the Fourth Amendment” for damages).” Id.

^[5] In response to Sierra Club, the government filed a stay application with the Supreme Court. The government’s main contention was that the Ninth Circuit erred in characterizing the plaintiffs’ challenge as constitutional rather than statutory. See App. for a Stay Pending Appeal at 22-31 Trump v. Sierra Club, No. 19A60 (U.S. July 12, 2019). On that basis, the government argued the plaintiffs lacked a cause of action under the Department of Defense Appropriations Act of 2019 § 8005, 132 Stat. 2999. See id. The government devoted only a single, conclusory paragraph to arguing that the zone-of-interests test would apply if the plaintiff’s claim were constitutional in character. See id. at 30-31.

The Supreme Court subsequently granted the government’s application for a stay, stating that “[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Order, Trump v. Sierra Club, No. 19A60 (U.S. July 26, 2019). Given that it characterizes the plaintiffs’ claims as seeking review of “compliance with Section 8005,” this order suggests that the Supreme Court agrees with the government’s argument that the plaintiffs’ claim is statutory—not constitutional—in character. It does not suggest that the Supreme Court disagrees with the Ninth Circuit’s conclusion that the zone-of-interests test does not apply to constitutional claims seeking injunctive relief.

^[6] In Montesa v. Schwartz, the Courtstated that litigants have to satisfy both Article III and prudential standing requirements to bring a claim, and listed the zone-of-interests test as one prudential requirement. See 836 F.3d 176, 195 (2d. Cir. 2016). But Montesa did not turn on prudential standing, and the Court lacked occasion to consider the question here at issue.

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