Wednesday, June 26, 2013

Perry and the Constitutionalization of Agency Law

Mark Tushnet

Not that anyone really cares, but the Court's opinion in Perry might have quite broad implications for legislative authority to create property rights, the invasion of which is sufficient to confer standing. As Justice Kennedy's devastating dissent points out, the Court appears to hold that Article III requires state law to conform to some general federal principles (drawn from the Restatement of Agency) of agency law, when it creates what it (the state) calls an agency relationship.

Suppose the California Supreme Court had said that initiative proponents who pursued litigation to defend "their" initiative when state officials refused to do so were entitled to receive a bounty of $100,000 if their defense succeeded. (This is like the federal qui tam cases, I think.) Would they then be "Article III agents"? Or merely ordinary holders of a contingent property right? Note that "the people" could revoke the bounty whenever they wanted to (just as they could revoke the proponents' entitlement to defend the initiative, as Justice Kennedy points out). Would a retrospective revocation be a taking of property?

Now take away the bounty, and you have a situation where the initiative proponents have a property right protected by remedies other than "damages." (No state court could enjoin them from appearing to defend their initiative, for example.) You also have the situation in Perry itself. But, we know that the proponents don't have standing because they don't have the characteristics of agents as defined by the Restatement of Agency.

So, apparently, California can't develop its own law of agency in connection with ballot initiatives, responsive -- as Justice Kennedy says -- to the special circumstances of ballot initiatives (in the way common-law courts develop the law of agency in other contexts). (The limitation is restricted to Article III standing, of course.)

The question then is, What other state-law entitlements are constrained by Article III for standing purposes? (Here "state-law" is a shorthand for "entitlements created by law outside Article III," so the principle applies to congressionally-determined entitlements as well.) Akins says that Congress can create a right to information merely to satisfy the requestor's curiosity; Lujan says that Congress can't create a right to ensure that "the law" be adhered to. Perry is somewhere in between, but who knows exactly where. Maybe the technical problem in Perry is that the California Supreme Court didn't use the right magic words to describe the initiative proponents as "really, really" agents of the people.

And, of course, the most accurate analysis is almost certainly that five Justices wanted to duck the merits at the moment (maybe more did so, but were liberated to join Kennedy's dissent by the fact that five were willing to bite the bullet and find no standing).