in interpretation of Kemp-Kasten, plaintiffs challenge the legality of the decision.
The gravamen of the complaint is that the Administrator's interpretation of Kemp-Kasten, as related in the letter to Senator Helms, imposes a criminal intent standard before the funds can be withheld. While Plaintiffs do not claim that UNFPA is barred from receiving U.S. funds, Plaintiffs object to Atwood's position that UNFPA would not be barred from receiving funds unless Atwood found UNFPA's "knowing and intentional" participation in coercive abortion and involuntary sterilization activities of the Chinese government. Plaintiffs maintain that this newly created scienter requirement defeats the purpose of Kemp-Kasten, which is to prevent the use of United States tax dollars in coercive birth control, whether that use be knowing, intentional, reckless, or negligent. Plaintiffs assert that under Kemp-Kasten the Administrator, as a threshold matter, must make an objective determination whether China does or does not maintain a coercive family planning program. Then the Administrator must make a determination whether the assistance of UNFPA allows China to more effectively implement such policies.
Defendant opposes the motion for a temporary injunction and moves to dismiss for lack of jurisdiction, asserting that none of the plaintiffs have standing to sue.
At a minimum, the Constitution requires the plaintiffs to show they have suffered "some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The injury must be traceable to the challenged action and be "likely to be redressed by a favorable decision." Id. ; Simon Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). The Injury must result from an invasion of a legally protected interest which is (1) concrete and particularized and (2) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2136 (1992).
Article III of the Constitution mandates the injury and redressability requirements. "Those who do not possess Art. III standing may not litigate as suitors In the courts of the United States." Valley Forge Christian Academy, 454 U.S. at 475-76. It is through these requirements that the Constitution constrains the courts, limiting their activities to the resolution of actual cases or controversies and thereby preventing the judicial process from becoming "merely publicly funded forums for the ventilation of public grievances." Id. at 473; See also United States v. SCRAP, 412 U.S. 669, 687, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973) (noting that judicial process should not be converted into "no more than a vehicle for the vindication of the value interests of concerned bystanders."). If none of the plaintiffs in the instant action can satisfy the constitutional requirements of standing, this lawsuit must be dismissed.
Defendants' motion questions the Plaintiffs' standing to maintain this lawsuit. It is clear that the Plaintiffs Zhang and Guo do not meet the standing threshhold. While they certainly describe some barbaric actions that might befall them if they return to their homeland, the relationship of such actions to the law in question is entirely too remote to provide them with the requisite standing to challenge the Congressional enactment. The Chinese plaintiffs meet neither the traceability nor the redressability aspects of the constitutionally mandated standing requirement.
See Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).
The standing of Congressman Smith is a little different. At oral argument, his counsel made a persuasive argument that Brian Atwood, the Administrator of the Agency for International Development, would impose a standard that would require a criminal intent before he would withhold funds pursuant to the Kemp/Kasten Amendment. Administrator Atwood in his letter to Senator Helms articulated the position that only "clear evidence" of knowing and intentional direct funding or support by UNFPA to a government's population program position would be considered by AID in the KempKasten determination. It is quite clear that such a standard is in no way contemplated by the Kemp/Kasten Amendment.
At oral argument, the Court requested that defense counsel confer with Administrator Atwood to determine whether the language used in the Helms letter was simply a poor choice of words or whether he actually intended to administer the Act pursuant to a criminal scienter standard.
The Court has been advised by letter from defense counsel that the words were indeed poorly chosen and that the Administrator would under no circumstance impose a criminal intent standard before revoking a grant if the Administrator learned the grantee was violating the Kemp/Kasten Amendment:
I am authorized by AID to advise the Court that, by the quoted phrase, the Administrator meant to clarify that the restrictions in the ambiguous language of Kemp-Kasten are not triggered by activities which are unintentional or remote, or which only indirectly or marginally relate to a program of coercive abortion or involuntary sterilization. The Administrator was not suggesting that Kemp-Kasten's restrictions are triggered only by criminal misconduct.