36
Scalia, J., dissenting
scription of CIA expenditures. Just as the (more indirect) harm caused to Mr. Akins by the allegedly unlawful failure to enforce FECA is precisely the same as the harm caused to everyone else: unavailability of a description of AIPAC's activities.
The Constitution's line of demarcation between the Executive power and the judicial power presupposes a common understanding of the type of interest needed to sustain a "case or controversy" against the Executive in the courts. A system in which the citizenry at large could sue to compel Executive compliance with the law would be a system in which the courts, rather than the President, are given the primary responsibility to "take Care that the Laws be faithfully executed," Art. II, § 3. We do not have such a system because the common understanding of the interest necessary to sustain suit has included the requirement, affirmed in Richardson, that the complained-of injury be particularized and differentiated, rather than common to all the electorate. When the Executive can be directed by the courts, at the instance of any voter, to remedy a deprivation that affects the entire electorate in precisely the same way—and particularly when that deprivation (here, the unavailability of information) is one inseverable part of a larger enforcement scheme—there has occurred a shift of political responsibility to a branch designed not to protect the public at large but to protect individual rights. "To permit Congress to convert the un-differentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty . . . ." Lujan, supra, at 577. If today's decision is correct, it is within the power of Congress to authorize any interested person to manage (through the courts) the Executive's enforcement of any law that includes a requirement for the filing and public availability of a piece of paper.
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