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Substantial Interest: Standing

Substantial Interest: Standing

Perhaps the most important element of the requirement of adverse parties may be found in the “complexities and vagaries” of the standing doctrine. “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.”338 The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”339 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. “[T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper—and properly limited—role of the courts in a democratic society.”’340

338 Flast v. Cohen, 392 U.S. 83, 99 (1968). That this characterization is not the view of the present Court, see Allen v. Wright, 468 U.S. 737, 750, 752, 755-56, 759-61 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 166, 174-175 (1974); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78-79 (1978).

339 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482-486 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225-226 (1974). Nor is the fact that if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.

340 Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated “by reference to the Art. III notion that federal courts may exercise power only ‘in the last resort, and as a necessity,’ . . . and only when adjudication is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.”’ Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 571-78 (1992).

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions,341 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.342 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court’s generalizations and the results it achieves are often at variance.343

341 E.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471-476 (1982); Allen v. Wright, 468 U.S. 737, 750-751 (1984).

342 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 60 (4th ed. 1983).

343 “[T]he concept of ‘Art. III standing’ has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). “Generalizations about standing to sue are largely worthless as such.” Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). For extensive consideration of the doctrine, see Hart & Wechsler, supra at 107-196.

The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts.344

Generalized or Widespread Injuries.—Persons do not have standing to sue to enforce a constitutional provision when all they can show or claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I,§ 6, cl. 2, was denied standing.345 “The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract.... [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.”346 Notwithstanding that a generalized injury that all citizens share is insufficient to confer standing, where a plaintiff alleges that the defendant’s action injures him in “a concrete and personal way,” “it does not matter how many [other] persons have [also] been injured… Where a harm is concrete, though widely shared, the Court has found injury in fact.”23

Taxpayer Suits.—Save for a narrow exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon,347 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those States that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer’s “interest in the moneys of the Treasury . . . is comparatively minute and indeterminate” and that “the effect upon future taxation, of any payment out of the funds ... [is] remote, fluctuating and uncertain,” the Court ruled that plaintiff had failed to allege the type of “direct injury” necessary to confer standing.348

344 Thus, state courts could adjudicate a case brought by a person without standing in the federal sense. If the plaintiff lost, he would have no recourse in the United States Supreme Court, inasmuch as he lacks standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant may be able to appeal, because he might well be able to assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).

345 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).

346 418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 176-177 (1974); Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); Whitmore v. Arkansas, 495 U.S. 149 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-77 (1992). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v. Tatum, 408 U.S. 1 (1972) ; Lance v. Coffman, 549 U.S. 437, 441 (2007) (per curiam).

23 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522 (2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent.’” Id. at 517, 521.

347 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits being consolidated.

348 262 U.S. at 487, 488. In Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007), the Court added that, “if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”

Taxpayers were found to have standing, however, in Flast v. Cohen,349 to contest the expenditure of federal moneys to assist religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, § 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means the taxpayer must allege the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the Establishment Clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, while Frothingham had alleged only that the Tenth Amendment had been exceeded. Reserved was the question whether other specific limitations constrained the taxing and spending clause in the same manner as the Establishment Clause.350

Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status.351 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under valid legislation and because the property transfer was not pursuant to a taxing and spending clause exercise but was taken under the property clause of Article IV, § 3, cl. 2.352 The Court also refused to create an exception for Commerce Clause violations to the general prohibition on taxpayer standing.24

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the expenditure of funds that is challenged was not specifically authorized by Congress, but came from general executive branch appropriations.25 Where expenditures “were not expressly authorized or mandated by any specific congressional enactment,” a lawsuit challenging them “is not directed at an exercise of congressional power and thus lacks the requisite ‘logical nexus’ between taxpayer status ‘and the type of legislative enactment attacked.’”26

349 392 U.S. 83 (1968).

350 392 U.S. at 105.

351 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227-28 (1974). Richardson in its generalized grievance constriction does not apply when Congress confers standing on litigants. FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on “any person aggrieved” by the denial of information required to be furnished them, it matters not that most people will be entitled and will thus suffer a “generalized grievance,” the statutory entitlement is sufficient. Id. at 21-25.

352 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). The Court’s present position on Flast is set out severely in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), in which the Court largely plays down the “serious and adversarial treatment” prong of standing and strongly reasserts the separation-of-powers value of keeping courts within traditional bounds. The footnote is a response to Justice Souter’s separate opinion utilizing Flast, id., 398-99, for a distinctive point. The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers] concerns.”

24 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347-49 (2006) (standing denied to taxpayer claim that state tax credit given to vehicle manufacturer violated the Commerce Clause).

25 Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007). This decision does not affect Establishment Clause cases in which the plaintiff can allege a personal injury. A plaintiff who challenges a government display of a religious object, for example, need not sue as a taxpayer but may have standing “by alleging that he has undertaken a ‘special burden’ or has altered his behavior to avoid the object that gives him offense… [I]t is enough for standing purposes that a plaintiff allege that he ‘must come into direct and unwelcome contact with the religious display to participate fully as [a] citizen[ ] . . . and to fulfill . . . legal obligations.’” Books v. Elkhart County, 410 F.3d 857, 861 (7th Cir. 2005). In Van Orden v. Perry, 545 U.S. 677. 682 (2005), the Court, without mentioning standing, noted that the plaintiff “has encountered the Ten Commandments monument during his frequent visits to the [Texas State] Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.”

26 127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred in the judgment but would have overruled Flast. Justice Souter, joined by three other justices, dissented because he saw no logic in the distinction the plurality drew, as the plurality did not and could not have suggested that the taxpayers in Hein “have any less stake in the outcome than the taxpayers in Flast.” Id. at 2584.

Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education,353 such a taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools.354 But in Doremus v. Board of Education,355 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. The taxpayer’s action in Doremus, the Court wrote, “is not a direct dollars-and-cents injury but is a religious difference.”27 This rationale was similar to the spending program-regulatory program distinction of Flast. But, even a dollar-and-cents injury resulting from a state spending program will apparently not constitute a direct dollars-and-cents injury. The Court in Doremus wrote that a taxpayer challenging either a federal or a state statute “must be able to show not only that the statute is invalid but that he has sustained some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”28

Constitutional Standards: Injury in Fact, Causation, and Redressability.—While the Court has been inconsistent, it has now settled upon the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of the defendant, and that the injury is likely to be redressed by a favorable decision.356

353 330 U.S. 1 (1947). In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006), the Court held that a plaintiff’s status as a municipal taxpayer does not give him standing to challenge a state tax credit.

354 See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel. McCollom v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers).

355 342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974).

28 342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).

356 Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) ; Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). See, however, United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the personal stake requirement. Id. at 404 n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420-21.

For some time, injury alone was not sufficient; rather, the injury had to be “a wrong which directly results in the violation of a legal right,”357 that is, “one of property, one arising out of contract, one protected against tortious invasion, or one founded in a statute which confers a privilege.”358 The problem was that the “legal right” language was “demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.”359 The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property rights.360

In any event, the “legal rights” language has now been dispensed with. Rejection occurred in two administrative law cases in which the Court announced that parties had standing when they suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.361 Now political,362 environmental, aesthetic, and social interests, when impaired, afford a basis for making constitutional attacks upon governmental action.363 “But deprivation of a procedural right without some concrete interest that is affected by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing.”29 The breadth of the injury in fact concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices. The subjective and intangible interests of persons in enjoying the benefits of living in integrated communities were found sufficient to permit them to attack actions which threatened or harmed those interests even though the actions were not directed at them.364 In FEC v. Akins,365 the Court found “injury-in-fact” present when plaintiff voters alleged that the Federal Election Commission had denied them information, to which they alleged an entitlement, respecting an organization that might or might not be a political action committee. Congress had afforded persons access to the Commission and had authorized “any person aggrieved” by the actions of the FEC to sue to challenge the action. That the injury was widely shared did not make the claimed injury a “generalized grievance,” the Court held, but rather in this case, as in others, it was a concrete harm to each member of the class. The case is a principal example of the ability of Congress to confer standing and to remove prudential constraints on judicial review. Similarly, the interests of individuals and associations of individuals in using the environment afforded them the standing to challenge actions which threatened those environmental conditions.366 Even citizens who bring qui tam actions under the False Claims Act, an action that entitles them to a percentage of any civil penalty assessed for violation, have been held to have standing, on the theory that the Government has assigned a portion of its damages claim to the plaintiff, and the asignee of a claim has standing to assert the injury in fact suffered by the assignor.367 Citing this holding, and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the litigation to the assignor.30 The Court noted that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; and so forth.”31 Nonetheless, the Court has also in constitutional cases been wary of granting standing to persons who alleged threats or harm to interests which they shared with the larger community of people at large, a rule against airing “generalized grievances” through the courts,368 although it is unclear whether this rule (or subrule) has a constitutional or a prudential basis.369 And in a number of cases, the Court has refused standing apparently in the belief that the assertion of harm is too speculative or too remote to credit.370

357 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151-152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).

358 Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).

359 C. Wright, supra at 65-66.

360 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430-431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr, 369 U.S. 186, 204-208 (1962) (voting rights).

361 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the language. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as “an invasion of a legally-protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations.

362 Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).

363 E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S. 106, 112-113 (1976); Warth v. Seldin, 422 U.S. 490, 498-499 (1975); O’Shea v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617-618 (1973).

29 Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmental group that was denied the opportunity to file comments with the United States Forest Service regarding a Forest Service Action denied standing for lack of concrete injury); Salazar v. Buono, 130 S. Ct. 1803 (2010) (plurality opinion) ("A party that obtains a judgment in its favor acquires a 'judicially cognizable' interest in ensuring compliance with that judgment").

364 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). While Congress had provided for standing in the Act, thus removing prudential considerations affecting standing, it could not abrogate constitutional constraints. Gladstone Realtors, supra 100. Thus, the injury alleged satisfied Article III.

365 524 U.S. 11 (1998).

366 Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 412 U.S. 669, 687-88 (1973); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). In particular, SCRAP, is disfavored as too broad. Lujan v. Defenders of Wild-life, 504 U.S. at 566. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted. In Duke Power, 438 U.S. at 78-81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of liability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264-65 (1991). Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).

367 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000). The Court confirmed its conclusion by reference to the long tradition of qui tam actions, since the Constitution’s restriction of judicial power to “cases” and “controversies” has been interpreted to mean “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Id. at 1863.

30 Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008) (payphone operators had assigned claims against long-distance carriers to “aggregators” to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices Scalia, Thomas, and Alito, stated that the aggregators lacked standing because they ”have nothing to gain from their lawsuit.” Id. at 2549.

21 128 S. Ct. at 2543.

368 SeeCitizen Suits” supra.

369 Compare Warth v. Seldin, 422 U.S. 490, 499-500 (1975) (prudential), with Valley ForgeChristian College v. Americans United, 454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again prudential.

370 E.g. Laird v. Tatum, 408 U.S. 1 (1972) (“allegations of a subjective ‘chill’are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”). See also O’Shea v. Littleton, 414 U.S. 488 (1974); California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371-373 (1976). Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (“deprivation of a procedural right [the right to comment on federal agency proposed action] without some concrete interest that is affected by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing”). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court held that victim of police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him. But see Davis v. Federal Election Commission, 128 S. Ct. 2759, 2769 (2008), in which the Court held that “the injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.” In this case, a statute provided that, if a political candidate declares that he will “self-finance,” then his opponent, if he qualifies, may receive individual contributions beyond the normal limit. A self-financing candidate challenged the statute after he had declared himself to be self-financing, but before his opponent had qualified for the higher contribution limit; the Court found that the self-financing candidate faced “a realistic and impending threat of direct injury” adequate for standing.

Of increasing importance are the second and third elements of standing, causation and redressability, recently developed and held to be of constitutional requisite. There must be a causal connection between the injury and the conduct complained of; that is, the Court insists that the plaintiff show that “but for” the action, she would not have been injured. And the Court has insisted that there must be a “substantial likelihood” that the relief sought from the court if granted would remedy the harm.371 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, since they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them.372 Low-income persons seeking the invalidation of a town’s restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained-of injury, inability to obtain adequate housing within their means, was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing.373 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school.374 But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that “but for” the passage of the law there was a “substantial likelihood,” based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries.375 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have as a consequence injured the claimants.376

371 Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although the two tests were initially articulated as two facets of a single requirement, the Court now insists they are separate inquiries. Id. at 753 n. 19. To the extent there is a difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Court denied standing because of the absence of redressability. An environmental group sued the company for failing to file timely reports required by statute; by the time the complaint was filed, the company was in full compliance. Acknowledging that the entity had suffered injury in fact, the Court found that no judicial action would afford it a remedy.

372 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked standing to contest prosecutorial policy of utilizing child support laws to coerce support of legitimate children only, since it was “only speculative” that prosecution of father would result in support rather than jailing). However, in Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009), the Court noted in dicta that, if a plaintiff is denied a procedural right, the fact that the right had been accorded by Congress “can loosen the strictures of the redressability prong of our standing inquiry.” Thus, standing may exist even though a court’s enforcing a procedural right accorded by Congress, such as the right to comment on a proposed federal agency action, will not guarantee the plaintiff success in persuading the agency to adopt the plaintiff’s point of view.

373 Warth v. Seldin, 422 U.S. 490 (1975). But in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), a person who alleged he was seeking housing in the community and that he would qualify if the organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low-income persons like himself was held to have shown a “substantial probability” that voiding of the ordinance would benefit him.

374 Allen v. Wright, 468 U.S. 737 (1984). But compare Heckler v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in conferral of benefits were held to have standing to challenge the treatment, although a judicial order could only have terminated benefits to the favored class. In that event, members would have secured relief in the form of equal treatment, even if they did not receive benefits. And see Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr, 440 U.S. 268, 271-273 (1979).

375 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-78 1978). The likelihood of relief in some cases appears to be rather speculative at best. E.g., Bryant v. Yellen, 447 U.S. 352, 366-368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160-162 (1981).

376 Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737, 756-761 (1984).

In a case permitting a plaintiff contractors’ association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too “speculative” or too “contingent.”377 The association had sued, alleging that many of its members “regularly bid on and perform construction work” for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the equal protection clause established a relevant proposition. “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”378 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis.379

377 Thus, it appears that had the Court applied its standard in the current case, the results would have been different in such cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737 (1984).

378 Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978).

379 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance on Jacksonville, id. at 81-82, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19.

Redressability can be present in an environmental citizen suit even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, “carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones.”380

Prudential Standing Rules.—Even when Article III constitutional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims.381 It is clear that the Court feels free to disregard any of these prudential rules in cases in which it thinks exceptionable circumstances exist,382 and Congress is free to legislate away prudential restraints and confer standing to the extent permitted by Article III.383 The Court has identified three rules as prudential ones,384 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff’s interest, to which she asserts an injury, must come within the “zone of interest” arguably protected by the constitutional provision or statute in question385 and that plaintiffs may not air “generalized grievances” shared by all or a large class of citizens.386 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court.

380 Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000).

381 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979) (“a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim”).

382 Warth v. Seldin, 422 U.S. 490, 500-501 (1975); Craig v. Boren, 429 U.S. 190, 193-194 (1976).

383 “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of “statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n.4, 11-12 (1976). For a good example of the congressionally-created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-75 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester’s right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571-78 (1992). Justice Scalia, who wrote the opinion in Lujan, reiterated the separation-of-powers objection to congressional conferral of standing in FEC v. Akins, 524 U.S. 11, 29, 36 (1998) (alleged infringement of President’s ″take care″ obligation), but this time in dissent; the Court did not advert to this objection in finding that Congress had provided for standing based on denial of information to which the plaintiffs, as voters, were entitled.

384 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474-75 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984).

385 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n. 19 (1976); Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987). See also Bennett v. Spear, 520 U.S. 154 (1997).

386 United States v. Richardson, 418 U.S. 166, 173, 174-176 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687-688 (1973), a congressional conferral case, the Court agreed that the interest asserted was one shared by all, but the Court has disparaged SCRAP, asserting that it “surely went to the very outer limit of the law,” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990).

Standing to Assert the Constitutional Rights of Others.— Usually, one may assert only one’s interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else.387 In Tileston v. Ullman,388 an early round in the attack on a state anticontraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held he had no standing; no right of his was infringed, and he could not represent the interests of his patients. But there are several exceptions to this part of the standing doctrine that make generalization misleading. Many cases allow standing to third parties if they demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson,389 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed.390 Similarly, the Court has permitted defendants who have been convicted under state law—giving them the requisite injury—to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question.391 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury requirement—to represent the rights of third parties with whom the challenged law has interfered with a relationship.392 It is also possible, of course, that one’s own rights can be affected by action directed at someone from another group.393 A substantial dispute was occasioned in Singleton v. Wulff,394 over the standing of doctors who were denied Medicaid funds for the performance of abortions not “medically indicated” to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible.395

387 United States v. Raines, 362 U.S. 17, 21-23 (1960); Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986).

388 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508-510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent).

389 346 U.S. 249 (1953).

390 See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a Negro had standing to contest constitutionality of ordinance barring sale of property to African Americans, inasmuch as black defendant was relying on ordinance as his defense); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory private club could raise rights of black assignee in seeking injunction against expulsion from club).

391 E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; although use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons were not subject to prosecution and were thus impaired in their ability to gain a forum to assert their rights).

392 E.g., Doe v. Bolton, 410 U.S. 179, 188-189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution to challenge it); Planned Parenthood v. Dan-forth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192-197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was “obvious claimant” to raise issue); Carey v. Population Services Int’l, 431 U.S. 678, 682-684 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).

393 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant had a right to a jury comprised of a fair cross section of the community). The Court has expanded the rights of non-minority defendants to challenge the exclusion of minorities from petit and grand juries, both on the basis of the injury-in-fact to defendants and because the standards for being able to assert the rights of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998).

394 428 U.S. 106 (1976).

395 Compare 428 U.S. at 112-18 (Justices Blackmun, Brennan, White, and Marshall), with id. at 123-31 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower grounds limited to this case.

Following Wulff, the Court emphasized the close attorney-client relationship in holding that a lawyer had standing to assert his client’s Sixth Amendment right to counsel in challenging application of a drug-forfeiture law to deprive the client of the means of paying counsel.396 However, a “next friend” whose stake in the outcome is only speculative must establish that the real party in interest is unable to litigate his own cause because of mental incapacity, lack of access to courts, or other disability.397

396 Caplin & Drysdale v. United States, 491 U.S. 617, 623-624 n. 3 (1989). Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004), the Court finding that attorneys seeking to represent hypothetical indigent clients in challenging procedures for appointing appellate counsel had “no relationship at all” with such potential clients, let alone a “close” relationship.

397 Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row inmate’s challenge to death penalty imposed on a fellow inmate who knowingly, intelligently, and voluntarily chose not to appeal cannot be pursued).

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him.398 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality.399

Organizational Standing.—Organizations do not have standing as such to represent their particular concept of the public interest,400 but organizations have been permitted to assert the rights of their members.401 In Hunt v. Washington State Apple Advertising Comm’n,402 the Court promulgated elaborate standards, holding that an organization or association “has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Similar considerations arise in the context of class actions, in which the Court holds that a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient.403

398 United States v. Raines, 362 U.S. 17, 21-24 (1960).

399 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 U.S. 479, 486-487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Young v. American Mini Theatres, 427 U.S. 50, 59-60 (1976), and id. at 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771-773 (1982). But the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988).

400 Sierra Club v. Morton, 401 U.S. 727 (1972). An organization may, of course, sue to redress injuries to itself. See Havens Realty Co. v. Coleman, 455 U.S. 363, 378-379 (1982).

401 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).

402 432 U.S. 333, 343 (1977). The organization here was not a voluntary membership entity but a state agency charged with furthering the interests of apple growers who were assessed annual sums to support the Commission. Id. at 341-45. See also Warth v. Seldin, 422 U.S. 490, 510-17 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39-40 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 263-264 (1977); Harris v. McRae, 448 U.S. 297, 321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).

403 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Geraghty was a mootness case.

Standing of States to Represent Their Citizens.—The right of a State to sue as parens patriae, in behalf of its citizens, has long been recognized.404 No State, however, may be parens patriae of her citizens “as against the Federal Government.”405 But a State may sue to protect its citizens from environmental harm,406 and to enjoin other States and private parties from engaging in actions harmful to the economic or other well being of it citizens.407 The State must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves;408 it must articulate an interest apart from those of private parties that partakes of a “quasi-sovereign interest” in the health and well-being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court’s wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts.409

Standing of Members of Congress.—The lower federal courts, principally the District of Columbia Circuit, developed a body of law with respect to the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch.410 When the Supreme Court finally addressed the issue on the merits in 1997, however, it severely curtailed Member standing.411 All agree that a legislator “receives no special consideration in the standing inquiry,”412 and that he, along with every other person attempting to invoke the aid of a federal court, must show “injury in fact” as a predicate to standing. What that injury in fact may consist of, however, is the basis of the controversy.

404 Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens patriae suits but denying it in this particular suit).

405 Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923). But see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two constitutional claims against the United States but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n. 1 (1970) (no question raised about standing or jurisdiction; claims adjudicated).

406 Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S. 365 (1923).

407 Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945) (antitrust); Maryland v. Louisiana, 451 U.S. 725, 737-739 (1981) (discriminatory state taxation of natural gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth’s opportunity to participate in federal employment service laws).

408 New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976).

409 Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607-08 (1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court’s standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a State to bring suit on behalf of its citizens should be commensurate with the ability of private organizations to do so. Id. at 610. The Court admitted that different considerations might apply between original actions and district court suits. Id. at 603 n.12.

410 Member standing has not fared well in other Circuits. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975).

411 Raines v. Byrd, 521 U.S. 811 (1997). In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court had recognized that legislators can in some instances suffer an injury in respect to the effectiveness of their votes that will confer standing. In Press-ler v. Blumenthal, 434 U.S. 1028 (1978), affg. 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The “unexplicated affirmance” could have reflected disagreement with the lower court on standing or agreement with it on the merits. Note Justice Rehnquist’s appended statement. Id. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had found Member standing, and directed dismissal, but none of the Justices who set forth reasons addressed the question of standing. The opportunity to consider Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but the expiration of the law in issue mooted the case.

412 Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978).

A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that if the court found the President’s actions to be beyond his constitutional authority, the holding would have a distinct and significant bearing upon the Members’ duties to vote appropriations and other supportive legislation and to consider impeachment.413 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson,414 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some “legislative disenfranchisement” occurred.415 In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator’s effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist.416 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint.417 The status of this issue thus remains in confusion.

413 Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

414 511 F.2d 430 (D.C. Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury was the nullification of the past vote on passage only or whether it was also the nullification of an opportunity to vote to override the veto has divided the Circuit, with the majority favoring the broader interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n.12 (D.C. Cir.), and id. at 711-12 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979)

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.418 Several Members of Congress, who had voted against passage of the Line Item Veto Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the statute adversely affected their constitutionally prescribed law-making power.419 Emphasizing its use of standing doctrine to maintain separation-of-powers principles, the Court adhered to its holdings that, in order to possess the requisite standing, a person must establish that he has a “personal stake” in the dispute and that the alleged injury suffered is particularized as to him.420 Neither requirement, the Court held, was met by these legislators. First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which they were personally entitled. “[A]ppellees’ claim of standing is based on loss of political power, not loss of any private right, which would make the injury more concrete.... If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds . . . as trustee for his constituents, not as a prerogative of personal power.”421

415 Kennedy v. Sampson, 511 F.2d 430, 435-436 (D.C. Cir. 1974). See Harrington v. Bush, 553 F.2d 190, 199 n.41 (D.C. Cir. 1977). Harrington found no standing in a Member’s suit challenging CIA failure to report certain actions to Congress, in order that Members could intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d 461 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978).

416 Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C. Cir.) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure of the Justices to remark on standing is somewhat puzzling, since it has been stated that courts “turn initially, although not invariably, to the question of standing to sue.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C. Cir. 1977). In any event, the Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of precedential effect. United States v. Munsingwear, 340 U.S. 36, 39-40 (1950); O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975).

417 Riegle v. FOMC, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981).

418 521 U.S. 811 (1997).

419 The Act itself provided that “[a]ny Member of Congress or any individual adversely affected” could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure of this litigation, the Court in the following Term, on suits brought by claimants adversely affected by the exercise of the veto, held the statute unconstitutional. Clinton v. City of New York, 524 U.S. 417 (1998).

420 521 U.S. at 819.

421 521 U.S. at 821.

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at least a truncated version of) Coleman v. Miller,422 in which the Court had found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as a result of a tie-breaker by the lieutenant governor. Although there are several possible explanations for the result in that case, the Court in Raines chose to fasten on a particularly narrow point. “[O]ur holding in Coleman stands (at most, . . . ) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”423 Because these Members could still pass or reject appropriations bills, vote to repeal the Act, or exempt any appropriations bill from presidential cancellation, the Act did not nullify their votes and thus give them standing.424

It will not pass notice that the Court’s two holdings do not cohere. If legislators have standing only to allege personal injuries suffered in their personal capacities, how can they have standing to assert official-capacity injury in being totally deprived of the effectiveness of their votes? A period of dispute in the D. C. Circuit seems certain to follow.

Standing to Challenge Lawfulness of Governmental Action.—Standing to sue on statutory or other non-constitutional grounds has a constitutional content to the degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue “in an adversary context and in a form historically viewed as capable of judicial resolution.”425 Liberalization of the law of standing in this field has been notable. The “old law” required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the right invaded must be a legal right,”426 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient.

422 307 U.S. 433 (1939).

423 521 U.S. at 823.

424 521 U.S. at 824-26.

425 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).

426 Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).

A “legal right” could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it;427 or it could be a right created by the Constitution or a statute.428 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”429 Early decisions under this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.430

427 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).

428 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943).

429 5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC).

430 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).

In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing.431 Of even greater importance was the expansion of the nature of the cognizable injury beyond economic injury, to encompass “aesthetic, conservational, and recreational” interests as well.432 “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”433 Thus, plaintiffs who pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as “persons aggrieved” to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the “attenuated line of causation” from rate setting to injury, but that was a matter for proof at trial, not for resolution on the pleadings.434

431 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury-in-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885-889 (1990); Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court divided 5-to-4 in applying the test. And see Bennett v. Spear, 520 U.S. 154 (1997).

432 Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).

433 Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a “representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737-738, noting Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties).

Much debate has occurred in recent years with respect to the validity of “citizen suit” provisions in the environmental laws, especially in light of the Court’s retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits,435 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

434 United States v. SCRAP, 412 U.S. 669, 683-690 (1973). As was noted above, this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 566-67 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158-160 (1990).

435 See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that ″citizen suit″ provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524 U.S. 11 (1998) (expansion of standing based on denial of access to information).

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