Clear the air.

Gonzalez v. Raich, the "Comprehensive Scheme" Principle, and the Constitutionality of the Endangered Species Act, by Michael C. Blumm * & George A. Kimbrell **

Dear Editors of Environmental Law,

Our 2004 article, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision (1) analyzed the four federal circuit court cases in which litigants have argued that the take provision of the Endangered Species Act (ESA) is an unconstitutional exercise of Congress's Commerce Clause power. (2) Each federal court of appeals confronted with the issue has upheld the ESA's constitutionality, but on differing grounds. (3) The article evaluated each court's reasoning, focusing on the likelihood of each rationale being adopted by the Supreme Court. (4) We concluded that the Court would clearly uphold the constitutionality of the ESA's take provision in situations where either the listed species or the activity causing the take of that species had in the aggregate a substantial effect on interstate commerce. (5) However, adoption of either (or both) rationale would leave some species--intrastate species without a substantial effect on interstate commerce--and some forms of takes--those caused by noncommercial activity--possibly beyond the constitutional scope of the ESA. (6)

Our article maintained that a far better outcome---likely protecting all listed species from all types of takes--would result from the Court's approving of the "comprehensive scheme" rationale relied upon by the Fourth and Fifth Circuits. (7) According to the comprehensive scheme principle, federal regulation of noncommercial, intrastate activity is constitutionally permissible under the Commerce Clause if the regulation is an "essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (8) The ESA is such a comprehensive regulatory scheme--aimed in part at preserving the economic benefits of biodiversity and avoiding economically destructive interstate competition--that would be fatally undercut if piecemeal species extinction was permitted simply because the specific listed species or activity causing the take alone lacked a substantial effect on interstate commerce. (9)

While we viewed the Supreme Court affirming the comprehensive scheme principle as the best possible outcome, whether the Court would adopt the rationale was far from a foregone conclusion when we wrote. The Court had merely noted the theory in a passing sentence in United States v. Lopez. (10) And only one of the four appellate panels we analyzed relied on the ESA-as-a-comprehensive-scheme rationale in the main: the Fifth Circuit decision in GDF Realty Investments, Ltd. v. Norton (GDF Realty). (11) That decision narrowly escaped being vacated and reheard en banc, with known Federalist Society member (12) (and potential Supreme Court nominee (13)) Judge Edith Jones dissenting from the Fifth Circuit majority's decision not to rehear the case. (14) We added a short epilogue to our article responding to Judge Jones' dissent from the denial, predicted that the Supreme Court would side with the majority of the Fifth Circuit, and waited for the outcome of the appellant's

petition for certiorari. (15) Despite our optimism, it was quite unclear whether the Supreme Court would agree. (16)

The Court initially held conference on the GDF Realty certiorari petition on October 8, 2004, (17) but delayed its decision whether to grant or deny certiorari in the case, presumably because it was about to hear argument in another case focused on the regulation of noneconomic, intrastate activity under the Commerce Clause: Gonzalez v. Raich. (18) In Ralch, users and growers of medical marijuana, legal under California's Compassionate Use Act of 1996, (19) sought a declaration that the federal Controlled Substances Act (20) (CSA) was unconstitutional as applied to their intrastate manufacture and possession of marijuana. (21) On June 9, 2005, in a 6 to 3 ruling reversing the Ninth Circuit, the Court held that the application of the CSA provisions criminalizing the manufacture, distribution, or possession of marijuana to intrastate California growers and users of marijuana did not violate the Commerce Clause. (22)

We believe the Raich decision "cleared the air" concerning several important questions previously left unanswered. First and foremost, as we predicted, the Fourth and Fifth Circuit's reliance on the comprehensive scheme principle was justified: Raich is a resounding affirmation of the principle's validity, firmly securing its place in the Supreme Court's Commerce Clause jurisprudence. Writing for the majority, Justice Stevens held that the classification of marijuana as a drug regulated under the CSA was one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (23) The majority dismissed the respondents' (and the dissenters') "myopic focus" and "heavy reliance" on the Rehnquist Court's earlier Lopez and Morrison decisions for the proposition that noneconomic, intrastate activity could not be aggregated, and therefore could not produce the requisite effect on interstate commerce to be regulated under the Commerce Clause. (24) In the majority's view, the respondents read its recent precedents "far too broadly." (25) The Court noted that it need not determine that the respondents' activities, taken in the aggregate, substantially affect interstate commerce, "but only whether a rational basis exists for so concluding." (26) Congress did have such a rational basis because, according to the Court, the "failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA." (27) That the CSA's regulatory scheme "ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme." (28)

Justice Scalia concurred separately in the judgment, (29) agreeing that Congress "could reasonably conclude that its objective of prohibiting marijuana from the interstate market 'could be undercut' if those activities were excepted from its general scheme of regulation." (30) He observed that the fact that "simple possession [of marijuana] is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation." (31)

We think it is clear that the Court's embracing of the comprehensive scheme principle in Ralch also validates the constitutionality of the ESA's take provision. The Raich decision's aftershock effect on the ESA was apparently obvious to the Court: The Monday following the filing of the Raich decision, after holding the GDF Realty certiorari petition for more than a year (presumably while waiting for the Raich opinion), the Court denied certiorari in GDF Realty without comment. (32)

After Raich and the denial of certiorari in GDF Realty, lower courts faced with future challenges to the ESA's take provision are likely to rely on the comprehensive scheme rationale in finding the ESA's commerce clause connections, the best possible rationale for species protection. As we explained in Flies, the theory that the ESA's take provision is constitutional because it is an essential part of the ESA's economic regulatory structure is appealing because it allows for the regulation of all takes of listed species, while simultaneously avoiding arguments about whether the specific species has commercial effects, whether the regulated activity causing the take is commercial in nature, or whether noneconomic activity can be aggregated with economic activity to find the substantial effect on interstate commerce. (33)

There is more good news for species protection. The Raich majority distinguished Lopez and Morrison, the high watermarks of the so-called federalism "revolution" of the Rehnquist Court, cabining the application of those cases to situations where the parties assert that "a particular statute or provision falls outside Congress' commerce power in its entirety," and distinguishing cases in which parties argue that "individual applications of a concededly valid statutory scheme" should be excised. (34) Justice Scalia agreed, noting that Lopez and Morrison should not be properly understood to "declare noneconomic intrastate activity to be categorically beyond the reach of the Federal Government," because neither case "involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation." (35)

Like the as-applied challenge in Raich, the challenge to the ESA in GDF Realty focused solely on the take provision's application to intrastate, noneconomic activity: the threatened take of several species of little known, subterranean arachnids found only in two Texas counties. (36) After Raich, as-applied challenges relying on Lopez and Morrison and focusing on a particular species' lack of interstate commercial effect, or a particular activity's noncommercial nature, will likely suffer the same fate as the unsuccessful certiorari petition in GDF Realty. Instead, any challenge to the take provision's constitutionality will have to attack the statutory scheme as a whole, maintaining that the ESA itself lacks sufficient connections to interstate commerce to qualify as a comprehensive economic regulatory scheme, a much more difficult proposition to sustain. (37) As we noted in Flies, all three circuits to address challenges to the ESA, the Fourth, Fifth, and D.C. Circuits, have concluded that the ESA is at least in part an economic regulatory scheme. (38) Once a reviewing court concludes that the ESA is such a scheme, to uphold the statute it then only need conclude that Congress could have rationally determined that the take provision is essential to the ESA's functionality, (39) a conclusion supported by both the statute's legislative history and biological reality. (40)

The Raich decision added an additional layer of constitutional protection to the ESA, by grounding the comprehensive scheme principle not only in the Commerce Clause, but also in the Necessary and Proper Clause. The majority stated that "Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce ... among the several States.' U.S. Const., Art. I, [section] 8." (41) Justice Scalia wrote at length on this point, explaining that, unlike regulation of the channels or instrumentalities of interstate commerce, "the power to regulate [activities that substantially affect interstate commerce] cannot come from the Commerce Clause alone" because such activities are not necessarily "themselves [a] part of interstate commerce." (42) Instead, the power to regulate economic activity that substantially affects interstate commerce and the power to make such regulation effective are distinct, (43) and "Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce ... derives from the Necessary and Proper Clause." (44) Thus, for both the majority and Justice Scalia, the comprehensive scheme principle has sound constitutional moorings in both the Commerce and the Necessary and Proper Clauses of the Constitution. The Court's incorporation of the Necessary and Proper Clause echoed Judge Dennis of the Fifth Circuit, who wrote a separate concurrence in GDF Realty which emphasized that the Necessary and Proper Clause supported the ESA's constitutionality as a comprehensive scheme, of which the regulation of species takes is an essential part. (45)

We think the Court's recent embracing of the comprehensive scheme rationale immunizes the ESA take provision from the sort of as-applied attacks property rights activists have previously brought against its application. While we view this as good news for species protection, unfortunately, the ultimate result may to add more pressure for Congress to amend the ESA, or simply encouraging the Bush Administration to gut it with regulatory loopholes and agency handouts, as has occurred with other environmental statutes over the past five years. (46)

More generally, Raich signals that the Rehnquist Court's so-called federalism "revolution," if it ever existed, is hardly as radical as some feared. (47) The ripple effects of the Raich decision are just starting to be felt in the lower courts, (48) but early analysis suggests that, at the end of the day, the history books may view Lopez and Morrison more as aberrations in the Court's Commerce Clause jurisprudence rather than as the genesis of a seismic constitutional revolution. (49) No doubt a welter of law review articles will ensue on this topic in coming years, so we abstain from further analysis here and conclude with the central notion that Raich should put an end to judicial attacks on the ESA.

ADDENDUM 

While this "Clear the Air" comment was in press, Judge John G. Roberts, Jr. was nominated to fill Justice Sandra Day O'Connor's seat on the Supreme Court. As we explained in our 2004 article, Judge Roberts dissented from the D.C. Circuit's refusal to rehear Rancho Viejo, citing the apparent split in reasoning between the D.C. Circuit and the Fifth Circuit in the wake of the latter court's decision in GDF Realty. (50) Judge Roberts maintained that rehearing was warranted because of the Rancho Viejo panel's reliance on the commercial nature of the real estate development, rather than determining whether the listed arroyo toad had a sufficient connection to interstate commerce. (51) That reasoning, he suggested, was rejected by the Fifth Circuit in GDF Realty, creating a circuit split, a justification for rehearing. (52) He also contended that the panel decision was inconsistent with the Supreme Court's Lopez and Morrison decisions because those facial challenges could have succeeded only had there been no set of circumstances in which the Commerce Clause regulation was constitutional, yet under the panel decision the constitutionality of a regulation would depend on the nature of the regulated activity. (53) This dissent has prompted speculation that Judge Roberts may be interested in substantially narrowing the scope of Commerce Clause regulation. (54)

There is no question that the Judge Roberts' language was dismissive of the listed species, referring to it as a "hapless toad, that for reasons of its own, lives its entire life in California." (55) However, the issue that drew his concern--whether the commercial connection could be in the regulated activity--is no longer a live one in the post-Raich era, as it has been superceded by the Raich Court's resounding affirmation of the comprehensive scheme principle central to the Fifth Circuit's decision in GDF Realty. (56) Under this principle, an ESA take regulation has sufficient connection to interstate commerce, regardless of the specific activity regulated, if it is part of an economic regulatory program, and the ESA is such a program. (57) Since it seems safe to assume that, if Judge Roberts is confirmed, he will be bound by Raich's adoption of the comprehensive scheme interpretation of Congress's Commerce Clause power, the constitutionality of the ESA's take regulations would not seem to be threatened by Justice Roberts' presence on the Supreme Court. (58)

Best wishes,

Michael C. Blumm & George Andreas Kimbrell

* [c] Michael, C. Blumm, 2005. Professor of Law, Lewis & Clark Law School.

** [c] George A. Kimbrell, 2005. Clerk to the Hon. Ronald M. Gould, Ninth Circuit Court of Appeals, 2004-2005. J.D. 2004, Lewis and Clark Law School.

(1) Michael C. Blumm & George Kimbrell, Files, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision, 34 ENVTL. L. 309 (2004).

(2) Id. at 326-45 (analyzing Nat'l Ass'n of Home Builders v Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (GDF Realty), and Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003)).

(3) Blumm & Kimbrell, supra note 1, at 326-45.

(4) Id at 346-61.

(5) Id. at 346-49.

(6) Id. at 347-49, 359.

(7) Id. at 349-54, 332-37 (explaining the Fourth Circuit's reliance in Gibbs on the scheme rationale), 337-41 (explaining the Fifth Circuit's reliance in GDF Realty on the scheme rationale).

(8) Id at 349-54; see United States v. Lopez, 514 U.S. 549, 561 (1995).

(9) Blumm & Kimbrell, supra note 1, at 351 (noting that the Fourth, Fifth, and D.C. Circuits all held that the ESA was, at least in part, an economic regulatory scheme).

(10) See Lopez, 514 U.S. at 561 ("Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.").

(11) 326 F.3d 622 (5th Cir. 2003).

(12) See, e.g., Melissa Seckora, Society Girls, NATIONAL REVIEW ONLINE, at http://www. nationalreview.com/nr_comment/nr_comment051801a.shtml (last visited July 24, 2005).

(13) See, e.g., Neil A. Lewis, Court in Transition: Possible Nominees, N.Y. TIMES, July 2, 2005, at A13, available at 2005 WLNR 10415605 (discussing possible Supreme Court nominees).

(14) GDF Realty, 326 F.3d 622 (5th Cir. 2003), rehearing en banc denied by 362 F.3d 286 (5th Cir. 2004).

(15) Blumm & Kimbrell, supranote 1, at 361-62.

(16) See Linda Greenhouse, States' Case Challenging Species Act Is Rebuffed, N.Y. TIMES, June 14, 2005, at A16, available at 2005 WLNR 9391274 (describing GDF Realty as the "most potent of several efforts around the country to make the case that Congress's power to regulate interstate commerce did not extend to protecting animal or plant species that lack commercial value and that live in only one state"). In its petition for certiorari, GDF Realty claimed the Fifth Circuit's reliance on the comprehensive scheme principle reduced the Commerce Clause "to the intellectual joke it had become" before Lopez and Morrison. Petition for Writ of Certiorari at 2, GDF Realty Investments, Ltd. v. Norton, 125 S. Ct. 2898 (Jun. 13, 2005) (No. 03-1619), available at 2004 WL 1243138, *2. Amicus briefs in support of the cert. petition were filed by the National Association of Home Builders; The National Farm Bureau Federation; The Washington Legal Foundation, The Pacific Legal Foundation, The Claremont Institute Center for Constitutional Jurisprudence; The Mountain States Legal Foundation; and the States of Texas, Alaska, Delaware, and New Jersey. See Supreme Court of the United States, Docket Page, at http://www.supremecourtus.gov/docket/03-1619.htm (last visited July 23, 2005).

(17) Supreme Court of the United States, Docket Page, at http://www.supremecourtus. gov/docket/03-1619.htm (last visited July 24, 2005).

(18) Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted by 124 S. Ct. 2909, vacated and remanded by Gonzalez v. Ralch, 125 S. Ct. 2195 (June 6, 2005).

(19) CAL. HEALTH & SAFETY CODE [section] 11362.5 (West 1996).

(20) 21 U.S.C. [subsection] 801-904 (2000).

(21) Raich, 125 S. Ct. at 2204-05.

(22) Id. at 2209-15.

(23) Id. at 2210 (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)) (brackets in original); ld. at 2206 ("[W]hen 'a general regulatory statute bears a substantial relationship to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'") (quoting Lopez, 514 U.S. at 558); Maryland v. Wirtz, 392 U.S. 183, 196 n. 27 (1968).

(24) Raich, 125 S. Ct. at 2209-10 & n.34; see also id. at 2218 (Scalia, J., concurring) ("But those decisions [Lopez and Morrison] do not declare noneconomic intrastate activity to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation....").

(25) Id. at 2209.

(26) Id at 2208 (internal quotations omitted).

(27) Id. at 2209.

(28) Id. at 2209. The Court emphasized that the scheme principle came from was "well-established case law," presumably meaning Lopez. Id. at 2210 n. 34. (29) Id. at 2215-20 (Scalia, J., concurring).

(30) Id. at 2220; id. at 2217 ("Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.") (internal quotation marks omitted); id. ("Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.").

(31) Id. at 2219.

(32) GDF Realty Investments, Ltd. v. Norton, 125 S. Ct. 2898, 2005 WL 1383734 (Jun 13, 2005); see also Greenhouse, supra note 16, at A16. (discussing the Court's decision to deny certiori in GDF Realty).

(33) Blumm & Kimbrell, supra note 1, at 349-58.

(34) Raich, 125 S. Ct. at 2209 (emphasis added) (calling the distinction "pivotal[,] for the Court has often reiterated that [w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class." (internal quotations omitted)). (35) Id. at 2218.

(36) Blumm & Kimbrell, supra note 1, at 338-41.

(37) Id. at 351-54.

(38) Id. at 351 & n. 266 (citing Gibbs v. Babbitt, 214 F.3d 483, 494 n. 3 (4th Cir. 2000), GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 640 (5th Cir. 2003), and Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1073-74 (D.C. Cir. 2003)).

(39) Raich, 125 S. Ct. at 2211.

(40) Blumm & Kimbrell, supra note 1, at 349-58 & n. 267.

(41) Raich, 125 S. Ct. at 2209 (quoting U.S. CONST. art. I, [section] 8).

(42) Id at 2215-16.

(43) Id. at 2217 ("The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself 'substantially affect' interstate commerce.").

(44) Id. at 2216 (citing, e.g., Shreveport Rate Cases, 234 U.S. 342, 353 (1914)); id. ("Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."); id. at 2218 (criticizing the dissenters for "misunderstand[ing] the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation").

(45) Blumm & Kimbrell, supra note 1, at 341 (summarizing GDF Realty, 236 F.3d at 641-42 (Dennis, J., concurring)).

(46) See, e.g., Felicity Barringer, Endangered Species Act Faces Broad New Challenges, N.Y. TIMES, June 26, 2005, available at 2005 WLNR 10076612 (quoting one observer as concluding that currently there is "an alignment of the planets of people against the Endangered Species Act in Congress, in the White House and in the agencies"); Brad Knickerbocker, Endangered Species Act Under Fire From Two Directions, Christian Science Monitor, June 28, 2005, http://www.csmonitor.com/2005/0628/p03s02-nspo.html ("Given the current makeup of Congress, which matches the disposition of the Bush administration to amend the ESA in favor of property rights, such challenges have a good chance of succeeding.").

(47) See Greenhouse, supra note 16, at A16 (concluding that the GDF Realty denial of certiorari is the "latest evidence that the Rehnquist Court's federalism revolution is on the wane").

(48) See, e.g., United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (holding that a federal ban on machine-gun possession could not be applied to a homemade gun that had not traveled in interstate commerce) cert. granted and judgment vacated by United States v. Stewart, 125 S. Ct. 2899, 2005 WL 1383726 (June 13, 2005); United States v. Smith, 402 F.3d 1303 (11th Cir. 2005) (holding that there was insufficient evidence of interstate activity to support a conviction for the production and prosecution of child pornography), cert. granted and judgment vacated by United States v. Smith, 125 S.Ct., 2005 WL 882060 (June 20, 2005).

(49) See, e.g., Linda Greenhouse, The Rehnquist Court and Its Imperiled States' Rights Legacy, N.Y. TIMES, June 12, 2005, at 43, available at 2005 WLNR 9303554 ("[W]hat had seemed until very recently to be a legacy in the making now appears evanescent, perhaps even illusory."); id. (quoting Michael S. Greve of the American Enterprise Institute, an organization dedicated to "rehabilitating constitutional federalism" as saying "the federalism boomlet has fizzled" and wondering if the Court engaged in anything more than "symbolic federalism"). Justice Scalia's strong concurrence in Raich supports the theory that his earlier alliances with the now-dissenters as a member of the "federalism five" was one of convenience rather than principle. See generally Thomas Merrill, The Making of the Second Rehnquist Court: A Preliminary Analysis, 47 ST. LOUIS U. L. J. 569, 601-20 (2003).

(50) Rancho Viejo v. Norton, 334 F.3d at 1160 (Roberts, J., dissenting), discussed in Blumm & Kimbrell, supra note 1, at 346, n. 243. Judge Sentelle also dissented from the denial of rehearing. 334 F.3d at 1158.

(51) Rancho Viejo, 334 F.3d at 1160.

(52) Id. (citing GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 634-35 (5th Cir. 2003)).

(53) Id. (citing United States v. Lopez, 514 U.S. 549; and United States v. Morrison, 529 U.S. 598 (2000)).

(54) See, e.g., Charles Babington, Hearings Topic A May Be Surprise: Democrats Raise Commere Issue, WASHINGTON POST, July 22, 2005, at A15.

(55) Rancho Viejo, 334 F.3d at 1160 (Roberts, J., dissenting). But Judge Roberts did not indicate a view on the merits of the constitutional question, stating that rehearing "would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent." Id.

(56) See supra notes 20-25 and accompanying text.

(57) See Blumm & Kimbrell, supra note 1, at 313 n. 16, 335-36, 340-41, 344, 349-54, 362.

(58) As a practical matter, even if Judge Roberts objected to the Court's adoption of the comprehensive scheme principal, Justice O'Connor, his predecessor, dissented in Raich, so there would still be six votes in favor of the Raich reasoning.

A likely area where Judge Roberts may be an agent of change is standing law, where he seems to embrace the restrictive views of Justice Scalia. See Lily Henning, Roberts and Scalia: Standing side by Side, Legal Times, Aug. 1, 2005 (maintaining that Roberts "appears to embrace Scalian philosophies of limited government, judicial restraint, and originalism"); see also John G. Roberts, Jr., Article III Limits on Standing, 42 Duke L.J. 1219, 1221, 1226, 1232 (1993) (defending Justice Scalia's opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as "an exercise of judicial self-restraint," explaining that the "injury in fact" element of standing is a constitutional requirement that Congress lacks authority to create, and mentioning that recognition of standing's constitutional underpinnings will prevent the transformation of courts into "ombudsmen of the administrative bureaucracy, a role for which they are ill-suited both institutionally and as a matter of democratic theory").