CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL.
No. 11-1025
Supreme Court of the United States
Argued October 29, 2012—Decided February 26, 2013
568 U.S. 398
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined, post, p. 422.
Solicitor General Verrilli argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Delery, Deputy Solicitor General Kneedler, Anthony A. Yang, Douglas N. Letter, Thomas M. Bondy, Henry C. Whitaker, Robert S. Litt, Tricia S. Wellman, and Bradley A. Brooker.
Jameel Jaffer argued the cause for respondents. With him on the brief were Steven R. Shapiro, Alexander A. Abdo, Arthur N. Eisenberg, Christopher T. Dunn, and Charles S. Sims.*
*Richard A. Samp, Megan L. Brown, and Claire J. Evans filed a brief for John D. Ashcroft et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Canadian Civil Liberties Association et al. by Carmine D. Boccuzzi and Michael R. Lazerwitz; for the Center for Constitutional Rights et al. by Shayana Kadidal; for the Constitutional Accountability Center by Douglas T. Kendall, Elizabeth B. Wydra, and Rochelle Bobroff; for the Electronic Privacy Information Center et al. by Marc Rotenberg; for Former Church Committee Members and Staff by Sidney S. Rosdeitcher, Jonathan Hafetz, and Barbara Moses; for the Gun Owners Foundation et al. by William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, and Gary
Briefs of amici curiae were filed for the Committee on Civil Rights of the Association of the Bar of the City of New York by Peter T. Barbur and James G. Felakos; and for the New York State Bar
JUSTICE ALITO delivered the opinion of the Court.
Section 702 of the Foreign Intelligence Surveillance Act of 1978,
I
A
In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783,
In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelli-gence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”
In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an
When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson § 9:11, at 349-350. As relevant here, § 702 of FISA,
The present case involves a constitutional challenge to
outside the United States to acquire foreign intelligence information.”
Section 1881a mandates that the Government obtain the FISC‘s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance.
The FISC‘s role includes determining whether the Government‘s certification contains the required elements. Additionally, the court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.”
B
Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under
Respondents claim that
C
On the day when the FISA Amendments Act was enacted, respondents filed this action seeking (1) a declaration that
After both parties moved for summary judgment, the District Court held that respondents do not have standing. 646 F. Supp. 2d, at 635. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F. 3d 163 (2011).
Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. 1009 (2012), and we now reverse.
II
Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary‘s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (internal quotation marks omitted); see, e. g., Summers v. Earth Island Institute, 555 U. S. 488, 492-493 (2009). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818; see also Summers, supra, at 492-493; DaimlerChrysler Corp., supra, at 342; Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492-493; DaimlerChrysler Corp., supra, at 341-342, 353; Raines, supra, at 818-820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-474 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-222 (1974). In keeping with the purpose of this doctrine, “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819-820; see Valley Forge Christian College, supra, at 473-474; Schlesinger, supra, at 221-222. “Relaxation of standing re-quirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U. S. 166, 188 (1974) (Powell, J., concurring); see also Summers, supra, at 492-493; Schlesinger, supra, at 222, and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e. g., Richardson, supra, at 167-170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger, supra, at 209-211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U. S. 1, 11-16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program).
To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 149 (2010); see also Summers, supra, at 493; Defenders of Wildlife, 504 U. S., at 560-561. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Whitmore, 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3; see DaimlerChrysler Corp., supra, at 345; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979).
III
A
Respondents assert that they can establish injury in fact that is fairly traceable to
First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U. S. persons, cannot be targeted for surveillance under
Yet respondents have no actual knowledge of the Government‘s
Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use
methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See
Third, even if respondents could show that the Government will seek the FISC‘s authorization to acquire the communications of
We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the FISC‘s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance.
Fourth, even if the Government were to obtain the FISC‘S approval to target respondents’ foreign contacts under
In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to
B
Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid
have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,” id., at 138.
The Second Circuit‘s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” See id., at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey, 426 U. S. 660, 664 (1976) (per curiam); National Family Planning & Reproductive Health Assn., Inc. v. Gonzales, 468 F. 3d 826, 831 (CADC 2006). Any ongoing injuries that respondents are suffering are not fairly traceable to
If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel‘s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F. 3d, at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU, 493 F. 3d, at 656-657 (opinion of Batchelder, J.).
Because respondents do not face a threat of certainly impending interception under
First Amendment rights,” the Court declared that none of those cases involved a “chilling effect aris[ing] merely from the individual‘s knowledge that a governmental agency was engaged in certain activities or from the individual‘s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id., at 11. Because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id., at 13-14, the plaintiffs in Laird—and respondents here—lack standing. See ibid.; ACLU, supra, at 661-662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NSA surveillance and “a personal (self-imposed) unwillingness to communicate“); United Presbyterian Church, 738 F. 2d, at 1378 (holding that plaintiffs lacked standing to challenge the legality of an Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing” by Laird).
For the reasons discussed above, respondents’ self-inflicted injuries are not fairly traceable to the Government‘s purported activities under
IV
A
Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents‘] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, Meese v. Keene, 481 U. S. 465 (1987), and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish standing simply by claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case.
In Laidlaw, plaintiffs’ standing was based on “the proposition that a company‘s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U. S., at 184. Because the unlawful discharges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents“—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id., at 183-184. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU, 493 F. 3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id., at 689-690 (Gibbons, J., concurring) (same); 667 F. 3d, at 182-183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using
In Keene, the plaintiff challenged the constitutionality of the Government‘s decision to label three films as “political propaganda.” 481 U. S., at 467. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career.” Id., at 467, 473-475. Unlike the present case, Keene involved “more than a ‘subjective chill‘” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid.; ACLU, 493 F. 3d, at 663-664 (opinion of Batchelder, J.); id., at 691 (Gibbons, J., concurring).
Monsanto, on which respondents also rely, is likewise inapposite. In Monsanto, conventional alfalfa farmers had standing to seek injunctive relief because the agency‘s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U. S., at 155. The standing analysis in that case hinged on evidence that genetically engineered alfalfa “seed fields [we]re currently being planted in all the major alfalfa seed production areas“; the bees that pollinate alfalfa “‘have a range of at least two to ten
B
Respondents also suggest that they should be held to have standing because otherwise the constitutionality of
Second, our holding today by no means insulates
Additionally, if the Government intends to use or disclose information obtained or derived from a
ent case, it would at least be clear that the Government had acquired the foreign client‘s communications using
Finally, any electronic communications service provider that the Government directs to assist in
* * *
We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of nonimminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of
I
The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “degree ... not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution‘s requirement is met. See Lujan, 504 U. S., at 560-561; id., at 583 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redress[able] by a favorable decision.” Id., at 560-561 (internal quotation marks omitted).
No one here denies that the Government‘s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a
II
A
Since the plaintiffs fear interceptions of a kind authorized by
In addition, the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.”
The addition of
B
It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al-Hussayen,
Another plaintiff, Sylvia Royce, says in her affidavit (1) that she is an attorney; (2) that she “represent[s] Mohammedou Ould Salahi, a prisoner who has been held at Guantanamo Bay as an enemy combatant“; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] receive[s] calls from time to time from Mr. Salahi‘s brother, ... a university student in Germany“; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and mistreated if he did not cooperate.” Id., at 349a-351a.
The plaintiffs have noted that McKay no longer represents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm‘n, 554 U. S. 724, 734 (2008), and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U. S. military overseas.
A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher; (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured“; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations“; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Paki- stan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a-344a.
Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly communicate electronically (e. g., by telephone or e-mail) with foreigners located abroad; and (3) that in these communications they exchange “foreign intelligence information” as the Act defines it. Id., at 334a-375a.
III
Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that the Government, acting under the authority of
Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer‘s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client, have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. See, e. g., id., at 373a-374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e. g., id., at 342a (declaration of Joanne Mariner, stating that “some of the information [she] exchange[s] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States“).
At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States“). And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. See id., at 1 (“Protection of the American people and American interests at home and abroad requires access to timely, accurate, and insightful intelligence on the capabilities, intentions, and activities of ... terrorists“).
Third, the Government‘s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.” App. to Pet. for Cert. 370a.
Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the
Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statutory criteria. See Letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676 applications to the intelligence court, 2 were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some modification), online at http://www.justice.gov/nsd/foia/foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and available in Clerk of Court‘s case file). As the intelligence court itself has stated, its review under
The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment,
At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by the plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual
Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened the plaintiffs as “speculative.”
IV
A
The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” Ante, at 409 (internal quotation marks omitted). But, as the majority appears to concede, see ante, at 414, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.
The Court‘s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923) (“If the injury is certainly impending that is enough“). See also Babbitt, 442 U. S., at 298 (same). On other occasions, it has used the phrase as if it concerned when, not whether, an alleged injury would occur. Thus, in Lujan, 504 U. S., at 564, n. 2, the Court considered a threatened future injury that consisted of harm that the plaintiffs would suffer when they “soon” visited a government project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere profession of an intent, some day, to return” to the project area did not show the harm was “imminent,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564-565, n. 2 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm‘n, 540 U. S. 93 (2003), the Court denied standing because the Senator‘s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225-226.
On still other occasions, recognizing that “‘imminence’ is concededly a somewhat elastic concept,” Lujan, supra, at 565, n. 2, the Court has referred to, or used (sometimes along with “certainly impending“), other phrases such as “reasonable probability” that suggest less than absolute, or literal, certainty. See Babbitt, supra, at 298 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) (“[I]t is the plaintiff‘s burden to
B
1
More important, the Court‘s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. Id., at 4-5. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “‘realistic danger of sustaining a direct injury as a result of the statute‘s operation.‘” Id., at 8 (emphasis added). It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” ibid., that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city‘s hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger” that the relevant harm will occur.
Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the constitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id., at 999-1000. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not imaginary or speculative” but “quite realistic,” hence “sufficiently substantial.” Id., at 1000-1001 (quoting Younger v. Harris, 401 U. S. 37, 42 (1971)). The plaintiffs’ injury here is not imaginary or speculative, but “quite realistic.”
Or, consider Davis, supra. The plaintiff, a candidate for the United States
Or, consider MedImmune, supra. The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty payments to the patent holder. In explaining why the plaintiff had standing, we (1) assumed that if the plaintiff stopped making royalty payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit‘s “reasonable apprehension of imminent suit” requirement, and (3) instead suggested that a “genuine threat of enforcement” was likely sufficient. Id., at 128, 129, 132, n. 11 (internal quotation marks omitted). A “genuine threat” is present here.
Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 74 (1978), for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the constitutionality of the Price-Anderson Act, a statute that limited the plant‘s liability in the case of a nuclear accident. The plaintiffs said that, without the Act, the defendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id., at 74. The Court found standing in part due to “our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid. (emphasis added). See also Monsanto Co., 561 U. S., at 153-154 (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)).
See also lower court cases, such as Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234-1235 (CADC 1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased risk of wildfires); Natural Resources Defense Council v. EPA, 464 F. 3d 1, 7 (CADC 2006) (plaintiffs attack Government decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC, 457 F. 3d 14, 20 (CADC 2006) (standing based on increased risk of nonrecovery inherent in the reduction of collateral securing a debt of uncer- tain amount); Sutton v. St. Jude Medical S. C., Inc., 419 F. 3d 568, 570-575 (CA6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc., 259 F. 3d 885, 888-891 (CA7 2001) (standing based on increased risk that Employee Retirement Income Security Act of 1974 beneficiary will not be covered due to increased amount of discretion given to ERISA administrator).
How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building
Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts § 63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant‘s promise is one to perform in the future, it has not yet been broken, and defendant may still retract the repudiation). E. g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F. 3d 787, 792-793 (CA7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. International Ins. Co., 354 F. 3d 568, 598-601 (CA6 2004) (similar).
Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond which, the plaintiff believes, will very likely, but not inevitably, overflow his land? See 42 Am. Jur. 2d, Injunctions §§ 2, 5 (2010) (noting that an injunction is ordinarily preventive in character and restrains actions that have not yet been taken, but threaten injury). E. g., Central Delta Water Agency v. United States, 306 F. 3d 938, 947-950 (CA9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plaintiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co., 499 F. 3d 382, 386 (CA5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff‘s tract because of threat that contaminants might migrate to plaintiff‘s tract).
Neither do ordinary declaratory judgment actions always involve the degree of certainty upon which the Court insists here. See, e. g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941) (insurance company could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239-244 (1937) (insurance company could seek declaration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e. g., Associated Indemnity Corp. v. Fairchild Industries, Inc., 961 F. 2d 32, 35-36 (CA2 1992) (insured could seek declaration that insurance company must pay liability even before insured found liable).
2
In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co., 561 U. S., at 153-156, the plaintiffs, a group of conventional alfalfa growers, challenged an agency decision to deregulate genetically engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain
Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid. The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contaminated.” Id., at 154. And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid. We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.” Id., at 155.
Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client (e. g., a client accused of terrorism), he must “make an assessment” whether his “client‘s interest would be compromised” should the Government “acquire the communications.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id., at 371a-372a (“I have had to take measures to protect the confidentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive“).
Since travel is expensive, since forgoing communication can compromise the client‘s interests, since McKay‘s assessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely to occur. See also Friends of the Earth, Inc., 528 U. S., at 183-184 (holding that plaintiffs who curtailed their recreational activities on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene, 481 U. S. 465, 475 (1987) (stating that “the need to take ... affirmative steps to avoid the risk of harm ... constitutes a cognizable injury“).
3
The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas, 495 U. S. 149 (1990). But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner‘s death sentence would be missing from the State‘s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would succeed. The Court found no standing. Id., at 161. But the fellow prisoner‘s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then reconvicted and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was
In DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006), taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufacturer. We found no standing. But the plaintiffs would have suffered resulting injury only if the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id., at 344.
In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra, at 432, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U. S., at 564, n. 2. The relevant injury there consisted of a visit by an environmental group‘s members to a project site where they would find (unlawful) environmental depredation. Id., at 564. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now.
The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute, 555 U. S. 488 (2009), for example, the plaintiffs challenged a regulation exempting certain timber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recreational use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[t]here may be a chance, but ... hardly a likelihood,” that the plaintiff‘s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id., at 495 (emphasis added).
4
In sum, as the Court concedes, see ante, at 414, and n. 5, the word “certainly” in the phrase “certainly impending” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case.
* * *
While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority‘s contrary conclusion.