Article III, Section 2, Clause 1 — Standing

ArtIII.S2.C1.6.1 Overview of Standing

The concept of “standing” broadly refers to a litigant’s right to have a court rule upon the merits of particular claims for which he seeks judicial relief.¹ The Supreme Court has held that, as a threshold procedural matter,² a litigant must have standing in order to invoke the jurisdiction of a federal court so that the court may exercise its “remedial powers on his behalf.”³ In general, for a party to establish Article III standing, he must allege (and ultimately prove) that he has a genuine stake in the outcome of the case because he has personally suffered (or will imminently suffer): (1) a concrete and particularized injury; (2) that is traceable to the allegedly unlawful actions of the opposing party; and (3) that is redressable by a favorable judicial decision.⁴ These requirements seek to ensure that federal courts do not exceed their Article III power to decide actual “cases” or “controversies.” ⁵

The Court has held that the burden of establishing standing falls upon each party who seeks a distinct form of judicial relief,⁶ including a party initiating a lawsuit,⁷ intervening in a lawsuit,⁸ or appealing a lower court decision.⁹ Each of these parties must make an appropriate showing during each stage of the litigation¹⁰ that the elements of injury, causation, and redressability existed at the outset of the lawsuit, and continue to exist,¹¹ for each claim¹² and for each form of relief sought.¹³ A litigant’s failure to establish standing to sue may result in dismissal of his distinct claims for relief without a decision on the merits of those claims.¹⁴

Since the 1920s, the Supreme Court has offered various justifications for these somewhat amorphous¹⁵ constitutional limitations on the categories of litigants who can maintain a claim for judicial relief in an Article III federal court.¹⁶ Perhaps the most frequently cited rationale derives from the Constitution’s separation of powers among the branches of government.¹⁷ Issues of standing often arise when a private plaintiff sues the government, seeking to have it act in accordance with the Constitution or other law.¹⁸ But, as the Court has frequently noted, the Constitution makes the political branches—and not the courts—responsible for “vindicating the public interest.”¹⁹ As a result, unelected judges lack the authority to render advisory opinions as to whether Congress or the Executive has followed the law; they may only decide a specific case brought before the court by a party that has suffered a particularized injury as a result of the government’s actions.²⁰ Such deference to the political branches, particularly in cases raising questions about the separation of powers,²¹ reflects the Court’s understanding of the “limited . . . role of the courts in a democratic society,”²² as well as its determination that federal courts should hear only those types of cases that the English judicial system would historically have considered suitable for judicial resolution.²³ And separation of powers concerns have also motivated the Court’s conclusion that Article III limits Congress’s ability to confer standing on plaintiffs to sue the government by enacting statutes containing “citizen-suit” provisions.²⁴ Such case law has reasoned that permitting plaintiffs who do not have a personal and direct stake in the outcome of a case to sue under one of these provisions would effectively allow the Legislative Branch to intrude upon the Executive Branch’s duty to enforce the law.²⁵

Although standing doctrine is grounded primarily in constitutional separation of powers concerns, the Supreme Court has also cited other rationales for its existence that may not be constitutional in nature. Requiring the litigant to have a personal stake in the outcome of his lawsuit ensures that a court will decide complex legal and factual issues in the context of a specific factual situation involving adverse parties who can more clearly illuminate for judges the issues in dispute.²⁶ Even in cases in which adversity between the parties exists, standing doctrine seeks to ensure that federal courts will not exercise the judicial power, which can significantly affect the lives, liberty, and property of others, to resolve generalized grievances brought primarily for the benefit of “concerned bystanders” who seek to vindicate abstract ideological interests (for example, a general interest in the protection of the environment is insufficient to confer standing).²⁷ More practical reasons for the standing requirements include a need to reserve the limited resources of the federal courts for concrete disputes;²⁸ the sweeping precedential effects of the Court’s holdings on the merits in constitutional litigation, which can be difficult, if not impossible, for Congress to alter without amending the Constitution;²⁹ and a need for the court to fashion relief no more broadly than the litigant’s situation requires.³⁰

The Supreme Court has also previously recognized certain prudential limitations on the exercise of federal courts’ jurisdiction, which, although lacking constitutional status, may nonetheless result in a court’s refusal to hear a case: (1) when the litigant seeks to assert the rights of third parties not before the court; (2) when the litigant seeks redress for a generalized grievance widely shared by a large number of citizens; and (3) when the litigant challenges government action or inaction and its asserted interests do not fall within the zone of interests arguably protected or regulated by the statute or constitutional provision underlying its claims.³¹ In recent years, however, the Court has questioned the basis of the doctrine of prudential standing.³² The Court has suggested that the bar on generalized grievances is a constitutional (and not prudential) requirement.³³ Moreover, the Court likewise has determined that a court applying the “zone of interests” test should examine whether the plaintiff ’s claim falls within the scope of a statutory provision creating a cause of action.³⁴ Furthermore, Congress, through express legislation, may abrogate these prudential standing requirements, to the extent that they remain viable and are not mandated by the Constitution.³⁵

The following essays trace the development of Article III standing doctrine in Supreme Court jurisprudence from its origins in the 1920s to the development of the modern doctrine and its key elements of injury, causation, and redressability. They then examine select topics that implicate the doctrine, including cases in which a plaintiff seeks to maintain standing to challenge government action or inaction by relying solely upon his status as a taxpayer, as well as the various forms of representational standing that a litigant who has not himself sustained injury may rely upon when asserting the rights of people not before the court. Finally, they conclude with an overview of standing for Members of Congress, congressional control of standing, and what remains of the concept of prudential standing.³⁶

ArtIII.S2.C1.6.2 Early Standing Doctrine

Prior to the 1970s, a litigant had standing only if he could show that his injury stemmed directly from the “violation of a legal right”¹ such as one recognized at common law or in statute.² The next section discusses how a significant increase in the power of federal administrative agencies to regulate businesses and individuals contributed to the Supreme Court’s decision to discard this “legal injury” test in favor of the more familiar “injury-in-fact” standing requirement in 1970.³ The Court, however, had already begun to develop some of the other basic principles of modern standing doctrine, such as the requirement that the litigant has suffered a particularized injury, decades earlier.⁴

While the Supreme Court had long recognized that its role under Article III is limited to “decid[ing] the rights of individuals” in particular cases rather than answering abstract questions about the constitutional authority of the political branches,⁵ the Court decided two cases in the 1920s that established the foundation for modern standing doctrine. Although the Court’s opinions in Fairchild v. Hughes⁶ and Frothingham v. Mellon⁷ do not employ the term “standing,” these decisions embody the fundamental principle underlying the modern concept of standing that a litigant must allege an individualized injury in order to establish a justiciable “case or controversy” under Article III of the Constitution and invoke the jurisdiction of a federal court.

The Supreme Court’s first foundational decision concerning Article III standing was the 1922 Fairchild case.⁸ In that case, the Court held that the federal courts lacked jurisdiction to rule upon a taxpayer’s challenge to the procedures by which the Nineteenth Amendment was ratified.⁹ In affirming the lower court’s dismissal of the case, the Court held that the plaintiff could not establish standing solely by relying upon his status as a citizen with nothing more than a general interest in ensuring that the federal government followed the law.¹⁰ Although Justice Louis Brandeis’s majority opinion alluded to Article III of the Constitution as the basis for the Court’s ruling on the issue of standing, the Court did not explain the reasoning behind its holding in detail.¹¹

A year later, in Frothingham v. Mellon, the Court elaborated on its rationale for the standing requirement.¹² In Frothingham, the Court considered various constitutional challenges to the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.¹³ The Court declined to reach the merits of the individual federal taxpayer’s constitutional claims, determining that the plaintiff lacked Article III standing.¹⁴ In support of its holding that the plaintiff lacked a sufficient stake in the outcome of the case, the Court noted that the taxpayer’s interest in preventing increased tax liability was a “minute and indeterminable” interest widely shared with millions of other U.S. taxpayers, and that a court order enjoining the use of taxpayer funds for the grant program might not actually redress the plaintiff ’s injury because it might not actually decrease the plaintiff ’s tax liability.¹⁵ Building on its decision in Fairchild, the Court in Frothingham specifically grounded the standing requirement in the Constitution’s structural separation of powers among the branches of government, as well as the Founders’ concerns with the proper role of the Judiciary in a democratic society.¹⁶ The Court wrote that deciding the case on the merits would “be not to decide a judicial controversy” but would rather force the Court to “assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess.”¹⁷ Consequently, the Court declined to hear the case, partly in order to avoid resolving abstract questions of policy best suited for resolution by the political branches.¹⁸

Although the Court’s decisions in Fairchild and Frothingham laid the groundwork for the standing doctrine, the Court’s opinions from this early time period failed to clarify whether this limitation on the power of the Federal Judiciary was an unavoidable constitutional barrier to litigation or, rather, a prudential constraint on jurisdiction subject to waiver at a judge’s discretion for compelling policy reasons.¹⁹ Such fundamental questions about the standing doctrine would remain unanswered until later in the twentieth century.

ArtIII.S2.C1.6.3 Standing Doctrine from 1940s to 1970s

The Supreme Court’s development of the standing doctrine from the 1940s to 1970s accompanied a significant increase in the power of federal administrative agencies to regulate businesses and individuals.¹ The rise of the administrative state raised the question of who could challenge various agency actions in federal court. During the first several decades of the administrative state, the Court’s standing test considered whether a litigant had suffered a violation of an explicit legal right. For example, in the 1939 case Tennessee Electric Power Co. v. Tennessee Valley Authority, the Court determined that a proprietor of a business lacked standing to object to the government helping businesses compete with the proprietor’s business.² The Court held that the proprietor had failed to identify any explicit legal right that the government had allegedly violated that was “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.”³ A year later in FCC v. Sanders Bros. Radio Station, the Court held that an existing radio station had “standing” to appeal the Federal Communication Commission’s grant of a license to a rival radio station.⁴ The Court determined that the existing station’s allegations of economic injury from increased competition qualified as a legal “injury” under the Communications Act of 1934, which authorized appeals of Commission orders by a “person aggrieved” or “whose interests [were] adversely affected” by grant or denial of a license.⁵ Thus, it appears that the Court’s constrained approach to standing during these early years resulted from its focus on whether the litigant had suffered injury to a specific legal right recognized by a federal statute or other source of law.⁶ Prior to the enactment of the Administrative Procedure Act⁷ and other federal statutes providing for judicial review of agency actions, litigants did not possess as many legal rights that could serve as a basis for standing.⁸

Although it is difficult to discern significant trends in the Court’s standing jurisprudence during this era, the Court generally adopted an even more permissive approach to standing in the 1960s and 1970s to facilitate challenges to actions by federal agencies. The Administrative Procedure Act, enacted in 1945, provided for judicial review of agency actions, for example, under federal consumer and environmental laws.⁹ The Court relaxed the legal injury requirement and allowed the private beneficiaries of those public interest protections to challenge federal agency action based on harms that were not specifically recognized by statute or at common law,¹⁰ including noneconomic harms to private individuals’ aesthetic or recreational interests.¹¹ However, as discussed below, this permissiveness declined after the late 1970s, as the Court began to adopt a stricter approach to standing, characterizing it as a core Article III concern.¹²

In the early 1970s, the Supreme Court recognized that a litigant needed standing to maintain a lawsuit but adopted a flexible approach toward the standing inquiry. For example, in Sierra Club v. Morton, an environmental group sought an injunction prohibiting federal officials from approving the construction of a ski resort in the Mineral King Valley adjacent to Sequoia National Park.¹³ The Court found that the plaintiffs lacked standing, concluding that their abstract interest in environmental protection was insufficient to confer standing.¹⁴ However, the Court’s opinion allowed for the possibility that future litigants who claimed injury to their noneconomic interests (e.g., “recreational” injuries impacting their ability to use a park) might be able to establish standing, even if such injuries were widely shared among the public.¹⁵

The high-water mark for the Supreme Court’s permissive approach to standing came in United States v. Students Challenging Regulatory Agency Procedures (SCRAP).¹⁶ In that case, the Court held that a group of Georgetown law students, together with the Environmental Defense Fund and the Izaak Walton League, had standing to challenge the Interstate Commerce Commission’s (ICC’s) approval of an increase to nationwide railroad freight rates on the grounds that it would ultimately result in “economic, recreational and aesthetic harm” to the groups’ members.¹⁷ The Court permitted the plaintiffs to establish standing at the pleading stage by combining a series of inferences about how they would suffer injury as persons “aggrieved” by the new rates.¹⁸ The Court found it sufficient for standing that the plaintiffs had alleged that higher rail rates would discourage the use of recyclable materials because used materials were often transported by rail to be recycled.¹⁹ As a result, the plaintiffs alleged that the ICC’s rate increase would cause companies to extract more raw materials, such as lumber, from parks in the Washington Metropolitan Area, resulting in people dumping more trash in the area’s parks.²⁰ Consequently, the plaintiffs alleged, the new rates would cause environmental damage to parks in the area that they frequented.²¹

The Court found this attenuated causal chain of inferences to be sufficient for standing purposes, determining that the plaintiffs would suffer “specific and perceptible” recreational and aesthetic harms,²² even if a large number of other people throughout the United States might claim similar harms from the agency’s approval of the rate increase.²³ The Court’s decision in SCRAP thus exemplifies the Court’s broader view at that time of the types of injuries that could support a litigant’s standing at the pleading stage in challenges to government action (e.g., noneconomic injuries, such as recreational injuries), as well as the types of inferences that a plaintiff could allege to connect such injuries to the defendant’s actions to satisfy the standing requirement.

Although the Supreme Court demonstrated some flexibility in applying rules of standing during the 1970s, the Court did not wholly reject a more stringent standing requirement. For example, two years after its decision in SCRAP, it considered Warth v. Seldin, a case in which residents of Rochester, New York, sued the adjacent town of Penfield and members of its local government boards, claiming that a Penfield town ordinance and its enforcement “excluded persons of low and moderate income from living in the town” in violation of various provisions of the Constitution and federal law.²⁴ In explaining its decision on the issue of standing, the Court adopted a more stringent definition of “injury in fact” than it had in SCRAP, determining that the plaintiffs failed to show a “distinct and palpable” injury to themselves from the ordinance.²⁵ The Court further determined that the plaintiffs lacked standing because they had failed to demonstrate a “substantial probability” that their alleged inability to obtain affordable housing resulted from the enforcement of the town’s ordinance instead of other factors, such as the independent decisions of real estate developers not to build housing for low-income individuals in the town.²⁶

The Supreme Court followed its decision in Warth a year later with Simon v. Eastern Kentucky Welfare Rights Organization, a case that introduced the concept of standing as a core Article III requirement.²⁷ In Simon, a group of indigent plaintiffs challenged an Internal Revenue Service ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status. The Court held that the plaintiffs lacked standing to sue because their injury depended on the independent actions of parties not before the Court—i.e., the hospitals.²⁸ Cases such as Warth and Simon began to rein in the more flexible standing test of the early 1970s²⁹ but left unresolved some questions about the legal basis for the standing inquiry and how rigidly courts should apply standing requirements. Nonetheless, these cases became the building blocks for later decisions that would usher in an era of stricter standing requirements,³⁰ ultimately culminating in the Court’s watershed decision in Lujan v. Defenders of Wildlife in the early 1990s.³¹

ArtIII.S2.C1.6.4.1 Overview of Lujan Test

Although the Supreme Court had broadly outlined the basic elements of modern standing doctrine during the 1970s, the Court did not clearly articulate the now-classic three-part test that federal courts must apply when inquiring into a litigant’s Article III standing until its 1992 decision in Lujan v. Defenders of Wildlife.¹ In that case, which involved an environmental group’s challenge under a citizen-suit provision to the Department of Interior’s decision not to apply the consultation rules of the Endangered Species Act to federal agency actions outside of the United States and high seas, Justice Antonin Scalia synthesized several of the Court’s standing cases from 1970s and 1980s to produce a three-part test.² Writing for the Court, he stated that a litigant seeking to invoke the jurisdiction of a federal court must demonstrate that:

• He has suffered an “injury in fact” that is “concrete,” “particularized,” and “actual or

imminent, not conjectural or hypothetical”;

• That a causal connection exists between the injury and the challenged conduct of the

defendant, such that the injury is “fairly traceable” to the defendant’s conduct and not

the result of action by third parties not before the court; and

• That it is “likely, as opposed to merely speculative, that the injury will be redressed by

a favorable decision.”³

This section explores the modern doctrine of Article III standing by examining cases in which the Supreme Court has interpreted and applied the three elements of the Lujan test in specific factual situations. Notably, although each standing element imposes an independent requirement on litigants, the three basic elements are interrelated.⁴

The first prong of the Lujan test requires a litigant to allege (and ultimately prove) that he has suffered an injury-in-fact. According to the Supreme Court, this key requirement has three components, obligating the litigant to demonstrate that he has suffered an injury that is (1) “concrete,” (2) “particularized,” and (3) “actual or imminent.”⁵ The meaning of each of these three components is best illustrated by a discussion of specific factual situations in which the Court has interpreted and applied it. The Lujan test also requires that a plaintiff be able to show causation and redressability.

ArtIII.S2.C1.6.4.2 Concrete Injury

First, to have an injury-in-fact, a litigant must establish that he has suffered or is imminently threatened with a “concrete” injury—that is, an injury that is “real” and not “abstract.”¹ Although the Supreme Court has not clearly articulated what makes a particular harm sufficiently concrete for standing purposes, it has provided some broad guidance. Over the years, the Court has decided several cases that explain the general types of injuries that qualify as concrete.² Many of these cases required the Justices to determine whether an intangible injury sufficed for standing. The Court has identified several arguably noneconomic harms to be concrete injuries, including aesthetic injuries (e.g., harm to a plaintiff ’s ability to observe an animal species);³ recreational injuries (e.g., injury to a plaintiff ’s enjoyment of natural resources such as a park);⁴ certain procedural injuries (e.g., injury to a litigant’s right to have an agency prepare an environmental impact statement for a federal agency action that affects his or her interests);⁵ injuries to constitutional rights;⁶ dilution of the effectiveness of a citizen’s vote in a federal election;⁷ and stigmatic injuries from racial discrimination.⁸ By contrast, the Court has held that concrete injuries would not include, for example, psychological harm from observing the federal government’s use of taxpayer money to provide financial assistance to a religious institution⁹ or harms to the plaintiff ’s general interest in advancing abstract interests (e.g., an interest in having low-income people access health services).¹⁰ Notably, the fact that an injury is “particularized”—or, in other words, that it affects the plaintiff individually¹¹—does not necessarily make that injury a concrete harm.

Congress, by statute, can influence a court’s standing analysis, but Congress cannot itself create standing in the absence of the constitutional prerequisites. When determining whether the defendant’s alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes, the Court has stated that federal courts should examine whether the injury is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”¹² But in doing so, courts must also give at least some weight to Congress’s judgments about which intangible harms amount to concrete Article III injuries.¹³ Thus, although Congress may, through enactment of legislation, elevate certain harms to the status of concrete injuries for standing purposes,¹⁴ Congress cannot create standing for litigants who do not face at least a material risk of injury from a defendant’s violation of the litigant’s statutory rights.¹⁵

ArtIII.S2.C1.6.4.3 Particularized Injury

In addition to showing that he suffers a material risk of harm from an actual, concrete injury, the litigant must demonstrate that the injury is “particularized”—or, in other words, that it affects him in a “personal and individual way.”¹ The “particularized injury” requirement has long served as a component of the Supreme Court’s standing analysis,² barring plaintiffs from seeking judicial redress for generalized grievances undifferentiated from those that a large number of people could claim.³ Nonetheless, the Court has generally been careful to distinguish “generalized grievances” that fail the particularity requirement from widespread injuries, such as mass torts, that are suffered by a large number of people but qualify as particularized because each person has sustained an individualized harm that is distinct from that suffered by the others.⁴ In this vein, the Court has held that a litigant’s failure to obtain information that federal law requires to be disclosed can constitute a sufficiently particularized injury of a procedural statutory right for Article III standing purposes, even if many individuals may suffer such an injury.⁵

However, even if a citizen has suffered a “particularized” injury of a statutory right, he must still demonstrate that such an injury is “concrete.” The Supreme Court distinguished between the concepts of “concrete” and “particularized” injury in its 2016 decision in Spokeo, Inc. v. Robins.⁶ In Spokeo, the plaintiff, Thomas Robins, sued Spokeo, Inc., a company that operated a “people search engine,” for alleged violations of the Fair Credit Reporting Act of 1970 (FCRA).⁷ The FCRA is a consumer protection statute that was enacted to ensure fairness, accuracy, and privacy in consumer credit reporting by imposing a number of requirements on consumer reporting agencies.⁸ The plaintiff sought to pursue a class action lawsuit alleging that Spokeo had willfully reported incorrect information about him and other class members in search results on its website.⁹

The court of appeals had held that Spokeo had inflicted a concrete (albeit, intangible) Article III injury on Robins because they violated his statutory rights, causing him individualized injury and entitling him to statutory damages.¹⁰ The Supreme Court reversed, holding that Spokeo’s alleged procedural violations of the FCRA, even if they affected the plaintiff individually and were therefore “particularized,” might not amount to “concrete” injuries, because “not all inaccuracies cause harm or present any material risk of harm.”¹¹ Therefore, the Court remanded the case to the Ninth Circuit to decide whether such a risk could result from the defendant’s purported procedural violations of the FCRA.¹² The Court’s decision in Spokeo indicates that a defendant’s actions, even if contrary to a procedural duty established by a federal statute providing a damages remedy and sufficient for a “particularized” injury, might not amount to a concrete injury sufficient for Article III standing if such injuries do not actually present a material risk of harm to the litigant.¹³ Federal courts will judge whether the defendant’s alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether the injury is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”¹⁴ But in doing so, courts must give at least some weight to Congress’s judgments about which intangible harms amount to concrete Article III injuries.¹⁵

In addition, the extent to which widespread environmental harms may constitute particularized injuries is an emerging issue in the Court’s standing jurisprudence.¹⁶ In a 2007 case in which the State of Massachusetts alleged particularized injury from climate change, the Court determined that the widely shared risks posed by rising sea levels constituted an individualized injury to the State in its capacity as owner of coastal property.¹⁷ However, in that case, the Court did not address whether allegations of widespread harm from climate change would constitute particularized injury in a case brought by an individual plaintiff rather than a state.

ArtIII.S2.C1.6.4.4 Actual or Imminent Injury

To satisfy the demands of Article III, a litigant must have suffered an “actual or imminent” injury or, in other words, have “sustained or [be] immediately in danger of sustaining some direct injury as the result of the challenged . . . conduct.”¹ To satisfy this test, a litigant’s injury must either have already occurred, be presently occurring, or will imminently occur (i.e., be “certainly impending”).² The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief).³ On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability if it seeks monetary damages.⁴

The requirement that a litigant establish an “actual” (i.e., past or present) injury is largely synonymous with the requirement for a concrete and particularized injury.⁵ For example, in Lewis v. Casey, the Court defined an “actual injury” to an inmate’s constitutional right of access to the courts and counsel as requiring an inmate to “demonstrate that the alleged shortcomings in [a prison’s] library or legal assistance program hindered his efforts to pursue a legal claim.”⁶ This evidentiary burden simply required a showing that the inmate had suffered an injury in the past that went beyond harm to “an abstract, freestanding right to a law library or legal assistance” and involved more than an allegation that a “prison’s law library or legal assistance program [was] subpar in some theoretical sense.”⁷ The Court cited as an example of actual injury in this context that an inmate’s legal complaint “was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.”⁸

The major questions that have arisen concerning the “actual or imminent” prong of the standing inquiry largely involve cases in which a litigant alleges future (i.e., “imminent”) injury and seeks injunctive relief to prevent it.⁹ The Supreme Court has decided several cases addressing when a litigant’s alleged future injures are sufficiently imminent to confer standing to seek a court order aimed at redressing them.

For example, the Court has indicated that it may be difficult for a litigant to establish an “actual or imminent” injury when he seeks injunctive relief against government officials for allegedly illegal and unconstitutional systemic practices in their administration or enforcement of the law.¹⁰ In O’Shea v. Littleton,¹¹ several residents of Cairo, Illinois, sued state and local officials for allegedly administering the criminal justice system in a discriminatory and unconstitutional manner through a pattern of illegal bondsetting, sentencing, and jury-fee practices.¹² The Court determined that the plaintiffs lacked standing to seek an injunction against these practices because they did not allege they had actually suffered (or would immediately suffer) injuries from the conduct of these officials.¹³ Although some of the plaintiffs were defendants in past criminal cases, at the time that they brought their lawsuit, none of the plaintiffs were serving sentences, on trial, or awaiting trial, and they did not allege an intent to engage in illegal conduct in the future.¹⁴ The plaintiffs thus failed to demonstrate more than mere speculation that they would be subject to the challenged law enforcement practices and suffer injuries as a result of being arrested, charged with crimes under laws they did not challenge as unconstitutional, and subject to proceedings before the criminal justice system.¹⁵

A decade later, the Court held that past illegal conduct by the government does not imply that the government will again violate the law in the future. For purposes of standing, this holding means that a litigant cannot use that past conduct to demonstrate imminent harm when seeking a declaration from the court that the agency’s past action was illegal (i.e., a declaratory judgment) or an order preventing the agency from engaging in illegal conduct in the future (i.e., an injunction). In Los Angeles v. Lyons, the plaintiff sought damages for having allegedly suffered a chokehold at the hands of the city police department but also asked for injunctive relief prohibiting the city from using chokeholds in the future.¹⁶ However, the Court found the plaintiff ’s allegations of future injury to be too speculative to support standing for the requested prospective injunctive relief because, although the plaintiff had been choked once, he could not realistically allege that there was a threat that he would again be arrested and illegally choked by the police as a result of the city’s policy.¹⁷

In a 2013 case implicating national security issues, the Court addressed how likely the threat of future harm to the plaintiff must be in order for that harm to qualify as an imminent injury. In Clapper v. Amnesty International USA, attorneys, human rights, labor, legal, and media organizations brought constitutional challenges alleging prospective injury from surreptitious federal government surveillance practices conducted by the Executive Branch pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA).¹⁸ The plaintiffs alleged that these practices presented an “objectively reasonable likelihood” that the government would intercept their communications with individuals outside of the United States.¹⁹ Although they could not definitively show that they or their clients or sources would be subject to these practices, the plaintiffs alleged threatened injury to their ability to “locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients.”²⁰ Moreover, the plaintiffs alleged that they had sustained actual, present injury because the risk of surveillance was “so substantial that they ha[d] been forced to take costly and burdensome measures to protect the confidentiality of their international communications.”²¹

The Court, in a 5-4 ruling written by Justice Samuel Alito, found that the plaintiffs lacked standing because they could not show that the FISA provision threatened them with “certainly impending” harm²² or, at the very least, a substantial risk of harm from the government surveillance program.²³ Moreover, the plaintiffs could not, in the Court’s view, “manufacture standing” by alleging present injury from the costs that they had incurred in order to avoid the hypothetical harm of government surveillance (e.g., travel expenses to conduct in-person conversations abroad).²⁴ It is important to note that Clapper arose in the sensitive areas of national security and foreign affairs, areas where the Court has “often found a lack of standing in cases” because of concerns about the Judiciary interfering with the political branches’ activities.²⁵

The following year, in a case not arising in the national security context, the Supreme Court appeared to adopt a broader view of the concept of “imminent harm.” In Susan B. Anthony List v. Driehaus, the Court addressed imminent harm in the context of a state government’s threatened enforcement of an allegedly unconstitutional law against an individual.²⁶ The Court held that a potentially targeted person may mount a constitutional challenge to the law when enforcement is “sufficiently imminent.” As a result, the plaintiff does not have to be arrested or prosecuted before challenging the law.²⁷ Instead, in order to have standing, the plaintiff must demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional interest” that is “arguably proscribed by the statute challenged,” as well as a credible threat of enforcement of the law against him or her.²⁸ Accordingly, the Court’s decision in Susan B. Anthony List suggests that there are still circumstances in which a substantial risk of harm to a litigant (rather than “certainly impending” harm) will suffice for standing purposes.²⁹

The Supreme Court also found imminent harm in a 2008 lawsuit in which a candidate for Congress, who declared that he would “self-finance” his campaign, challenged provisions of federal election law that would have allowed his opponent to receive campaign contributions on more favorable terms.³⁰ The Court determined that the self-financing candidate faced the threat of immediate injury.³¹ Although the opponent had not yet qualified for the campaign contribution benefit, the plaintiff had challenged the law after declaring his candidacy, as well as indicating his intent to spend enough of his personal funds during the campaign to trigger the benefit for his opponent.³² With the election in the near future, and finding no indication that the plaintiff ’s opponent would relinquish the opportunity to receive expanded contributions, the Court determined that injury to the plaintiff was imminent and that the plaintiff had standing to sue.³³

ArtIII.S2.C1.6.4.5 Causation

The second prong of the Lujan test for Article III standing requires the litigant to demonstrate that the injury-in-fact that he or she has suffered is “fairly traceable” to the challenged actions of the defendant.¹ Under Supreme Court jurisprudence, this requirement may not be met when the litigant’s injury results at least in part from the actions of a third party not before the court or, more broadly, when “the line of causation between the illegal conduct and injury [is] too attenuated.”²

For example, in Simon v. Eastern Kentucky Welfare Rights Org., the Supreme Court found that the plaintiffs lacked standing because they failed to show that the defendants’ actions had caused them harm, rather than the actions of absent third parties.³ In that case, a group of indigent plaintiffs challenged an Internal Revenue Service (IRS) ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status.⁴ The plaintiffs alleged that the Revenue Ruling made such hospitals less likely to grant free services to indigents.⁵ However, the Court held that the plaintiffs lacked standing to sue because their injury was the result of independent action of parties not before the Court—i.e., the hospitals.⁶ In other words, the hospitals’ denial of services to the indigents, even if likely to injure them, was not fairly traceable to the federal government’s issuance of the Revenue Ruling.⁷ Instead, the Court determined that it was too speculative to conclude that the denial of service was caused by the Revenue Ruling or that the plaintiffs would receive free hospital services if the IRS revoked its rule, as hospitals could establish their own policies with respect to providing services to indigents without regard to the tax implications.⁸ Thus, the plaintiffs lacked standing because they alleged future injuries that depended at least in part on the actions of third parties not before the court, and they could not show more than mere speculation that those third parties would establish policies that would injure them.⁹

A further example of how the interplay between the decisions of absent third parties and the litigant’s injury has affected the causation prong of the standing analysis is Allen v. Wright.¹⁰ In that case, parents of African-American children who attended public schools alleged that the IRS had caused them injury by allowing racially discriminatory private schools to qualify for federal tax exemptions, preventing the desegregation of their children’s schools.¹¹ The Court found these allegations did not establish sufficient causation for standing purposes.¹² Relying on its earlier decision in Simon, the Court determined that it was not clear that racial segregation in the public schools was linked to the IRS policies because private school officials might not change racially discriminatory school policies in response to a withdrawal of tax benefits, and, even if they did, parents of children attending private schools might not transfer their children to public school as a result of such changes.¹³ Thus, the plaintiffs’ allegations that the IRS policy had caused them injury rested on speculation about the actions of multiple third parties, and such speculation was insufficient to establish a causal connection between the defendant’s actions and the plaintiffs’ alleged injuries for standing purposes.¹⁴

As in the case of standing for procedural injuries, discussed above, certain kinds of equal protection injuries may be accepted as sufficient for standing even if the possibility of ultimate relief from that injury remains somewhat speculative. When a litigant challenges a governmental entity’s alleged discriminatory practices on equal protection grounds, arguing that those practices have deprived it of a benefit granted to another favored class of individuals, the litigant may have standing even if it cannot demonstrate that it would have received the benefit in the absence of the government’s conduct—or that a judicial order would result in its receipt of the benefit if it prevailed. Rather, the litigant must simply show that it would secure equal treatment under the law if it obtained judicial relief. Thus, for example, in Adarand Constructors v. Peña, the Court allowed a company’s challenge to subcontractor compensation clauses in federal procurement contracts that allegedly favored small businesses controlled by racial minorities.¹⁵ The Court held that, even if the company could not demonstrate that it would be the low bidder on any particular subcontract, it had alleged a sufficient injury from its inability to compete on an equal footing with other companies.¹⁶ Similarly, the Court determined that a male plaintiff had standing to challenge Alabama laws that authorized courts to impose alimony obligations on husbands but not wives.¹⁷ The Court permitted the challenge even though it was possible that prevailing in the suit would “not ultimately bring [the plaintiff] relief from the judgment [for alimony] outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives.”¹⁸

ArtIII.S2.C1.6.4.6 Redressability

The third and final prong of Lujan’s test for Article III standing, which is closely related to the “causation” test,¹ requires the litigant to demonstrate that the injury he has purportedly suffered would likely be redressed if the court granted the relief that he has requested.² When analyzing the redressability element of standing, the Supreme Court has focused on the specific relief requested by the plaintiff in its complaint and considered whether granting that relief would redress the injury alleged. For example, in Duke Power Co. v. Carolina Environmental Study Group, the Court found a “substantial likelihood” that a proposed nuclear power plant would not be constructed in the absence of a limitation of liability provided under the Price-Anderson Act. As a result, the neighbors of the proposed nuclear plant had standing to challenge the constitutionality of the Price-Anderson Act because the environmental and health injuries they would allegedly suffer from the operation of the plant would be redressed if the Court struck down the contested provisions of the Act.³

In contrast, in Steel Co. v. Citizens for a Better Environment, an environmental group sued a manufacturer for its past violations of the Emergency Planning and Community Right-to-Know Act (EPCRA).⁴ A citizen-suit provision of EPCRA authorizes suits against a company for its failure to submit information timely about the storage of hazardous chemicals, as well as toxic releases, at the company’s facilities.⁵ Although the company-defendant had later filed the overdue forms to address its violations of EPCRA,⁶ the plaintiffs asked the court to declare that the company had violated EPCRA and order various forms of injunctive and compensatory relief.⁷ The Court, noting that none of the requested forms of relief would reimburse the plaintiffs for losses caused by the company’s late reporting of its chemical information, found that it lacked jurisdiction to adjudicate the merits of the plaintiff ’s claims.⁸ In other words, because the plaintiff ’s requested relief, even if granted, could not remedy the plaintiffs’ alleged past injuries, the plaintiff ’s injuries were not redressable, and they therefore lacked standing to sue. Furthermore, to the extent that the plaintiffs requested prospective relief in the form of an injunction preventing future harm, they lacked standing because they failed to allege continuing or threatened injury from an ongoing violation of EPCRA by the defendant that could be redressed by a court order granting such relief.⁹

Nonetheless, when a litigant faces the threat of future injury as a result of ongoing violations of federal law, its injuries may be redressable by injunctive relief or a civil penalty payable to the U.S. Treasury. In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., the Court considered whether a plaintiff who brought a citizen suit (i.e., a private action to enforce the law) under the Clean Water Act¹⁰ could demonstrate standing to sue a company in order to compel its compliance with the terms of a permit to reduce water pollution. The plaintiff argued that its injuries would be redressed by a civil penalty payable to the U.S. Treasury because those penalties, like injunctions, deter future violations.¹¹ The Court agreed, holding that civil penalties, even if payable to the U.S. Treasury rather than the plaintiff, could prevent the threat of future injury rather than solely to serve as compensation for past injuries.¹²

A litigant may have more difficulty establishing redressability when it alleges an indirect injury from government action or inaction, and when redress would require actions by an independent third party not before the court. For instance, in Linda R.S. v. Richard D., the Supreme Court considered a Texas law imposing criminal sanctions on parents who failed to meet their child support obligations.¹³ Texas state courts had construed the law as imposing no duty of support on the parents of children born to unmarried parents, and the mother of an out-of-wedlock child challenged Texas’s refusal to enforce the law against her child’s absentee father.¹⁴ The Court held that the plaintiff had failed to allege facts sufficient to support judicial intervention because she did not show that her failure to obtain child support resulted from Texas’s decision.¹⁵ The Court noted that even in the unlikely event that the Court ordered the district attorney to enforce the law against the child’s father, the father would simply go to jail without being compelled to pay child support in order to get out of jail.¹⁶ Therefore, the plaintiff-mother’s injury was not redressable, as her requested injunctive relief against state officials could not compel the father (a third party) to redress her monetary injury through payment of child support.¹⁷

The Supreme Court has also held, however, that redressability may exist even when the litigant’s requested judicial relief would not completely redress its injury.¹⁸ In the 2007 case Massachusetts v. EPA, the Court held that the State of Massachusetts had standing to challenge the Environmental Protection Agency (EPA)’s refusal to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA).¹⁹ The Court determined that directing EPA to reexamine its refusal to regulate such emissions would redress the alleged risk of injury to plaintiffs’ interests from rising sea levels, even if judicial relief resulted in only incremental steps to slow or reduce global warming.²⁰ In so holding, the Court rejected the argument that an EPA rule would fail to redress the state’s injury because (1) it would not affect emissions by the existing automobile fleet, and (2) other countries would continue to increase greenhouse gas emissions.²¹ Thus, the Court suggested that a litigant may establish that its injury is redressable even if it cannot show that a favorable judicial decision will completely redress the harm.²²

ArtIII.S2.C1.6.5 Taxpayer Standing

In general, a litigant may not rely solely upon his status as a federal taxpayer to maintain Article III standing to challenge government policy or spending decisions.¹ Such taxpayer lawsuits, which are distinguishable from cases in which a litigant challenges the assessment of a tax as unconstitutional,² often ask a court to decide abstract legal questions regarding the authority of the political branches of government—a task that potentially raises concerns regarding the proper role of the Judiciary.³ And as a practical matter, litigants arguing that their taxes have been spent unlawfully may simply fail to satisfy the elements of Article III standing, as their complaints may amount to generalized grievances about government spending or policy decisions shared with millions of other taxpayers.⁴ Moreover, it may be difficult for a taxpayer-litigant to demonstrate that his or her increased tax liability is traceable to the government spending or policy decision challenged and that judicial relief would effectively reduce the litigant’s tax liability.⁵ These concerns have led the Supreme Court to permit taxpayer lawsuits only in narrow circumstances.

One of the Supreme Court’s earliest decisions on Article III standing involved a taxpayer lawsuit. In the 1923 case Frothingham v. Mellon, the Court declined to reach the merits of an individual federal taxpayer’s Tenth Amendment and Due Process challenges to the disbursement of federal funds to states under a federal appropriations law, determining that the plaintiff lacked Article III standing.⁶ The Court wrote that deciding the case on the merits would not decide a judicial controversy but would rather “assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess.”⁷

The Supreme Court further explained its justification for rejecting taxpayer lawsuits in the 1970s. In a case in which a federal taxpayer-plaintiff challenged a federal law allowing the Central Intelligence Agency (CIA) to withhold from the public detailed information about the Agency’s expenditures, alleging that it violated the Statement and Account Clause of the Constitution,⁸ the Supreme Court refused to reach the merits of the case.⁹ It determined that the plaintiff ’s claims raised a generalized grievance, not about Congress’s exercise of its taxing and spending power, but rather Congress’s exercise of power to regulate the CIA through a statute governing disclosure of information.¹⁰ In another case, an association of officers and enlisted members of the military reserves, as well as individual members, argued that the Incompatibility Clause of Article I¹¹ forbid certain Members of Congress from holding commissions in the Armed Forces Reserve. The Court held that they lacked standing to sue as taxpayers because they had brought generalized grievances against Executive Branch actions permitting Members of Congress to retain their status as members of the Reserves, and thus lacked the individualized injuries that might provide standing to challenge Congress’s exercise of its power under the Taxing and Spending Clause.¹²

For nearly a century since Frothingham, the Supreme Court has generally barred federal courts from entertaining cases in which a plaintiff relies solely upon his status as a taxpayer to establish standing.¹³ The principal exception to this rule, albeit a narrow exception,¹⁴ arises in the context of the First Amendment. The Court carved out a narrow exception to its general rule in the 1968 case Flast v. Cohen.¹⁵ In Flast, the taxpayer-plaintiff challenged federal spending under a federal statute, the Elementary and Secondary Education Act of 1965, on the grounds that it violated specific guarantees in the First Amendment’s Establishment Clause¹⁶ by subsidizing teaching at religious schools.¹⁷ In a departure from its earlier standing cases, the Court held that the plaintiffs possessed a genuine stake in the outcome of the case sufficient for standing.¹⁸ The Court applied a two-factor test that considered whether there was (1) a “logical link” between the plaintiff ’s taxpayer status and “the type of legislative enactment attacked”; and (2) “a nexus” between the status of the taxpayer-plaintiff and “the precise nature of the constitutional infringement alleged.”¹⁹ The Court determined that, in contrast to the plaintiffs in Frothingham, the Flast plaintiffs had not alleged that Congress had exceeded its powers under the Taxing and Spending Clause in Article I, Section 8 of the Constitution, but rather that Congress, by exercising its taxing and spending powers under that Clause in authorizing the challenged federal expenditures, had exceeded a specific constitutional limitation on its taxing and spending power (i.e., the First Amendment’s Establishment Clause).²⁰ The Court noted Establishment Clause drafter James Madison’s specific interest in preventing the federal government from collecting taxpayer money and spending it in favor of religion.²¹ Consequently, the Court found that the plaintiffs had standing to sue by distinguishing Flast from Frothingham on the grounds that the Flast plaintiffs sought to uphold a specific limit set forth in the Establishment Clause on how federal taxpayer money is used.²²

Since Flast, the issue of taxpayer standing has periodically arisen in the context of Establishment Clause challenges to federal financial assistance for religious organizations.²³ In subsequent cases, the Court has construed Flast’s exception to the general rule barring taxpayer standing quite narrowly.²⁴ Thus, when a federal agency disposed of surplus federal real property by conveying it to a private religious college without requiring the school to pay for it, the Court found that plaintiffs seeking to bring an Establishment Clause challenge to the transfer lacked standing to sue as taxpayers.²⁵ The Court distinguished the case from Flast for two major reasons. First, unlike in Flast, the plaintiffs had challenged a federal agency’s decision to transfer property rather than Congress’s enactment of the law authorizing the transfer.²⁶ Second, the property transfer implicated Congress’s power under the Property Clause²⁷ rather than the Taxing and Spending Clause.²⁸ By drawing these distinctions, the Court construed its precedent in Flast narrowly, determining that Flast’s exception to the general bar on taxpayer standing was limited to congressional acts that relied upon the Taxing and Spending Clause.

The Court again refused to recognize taxpayer standing in a 2007 Establishment Clause challenge. In Hein v. Freedom From Religion Foundation, taxpayer plaintiffs challenged the Executive Branch’s funding of its officials’ religiously themed speeches promoting federal assistance to religious organizations and community groups.²⁹ A three-Justice plurality suggested that taxpayer-plaintiffs lack standing to challenge Executive Branch funding of religious activities out of general Executive Branch appropriations because such cases do not involve Congress specifically authorizing, appropriating, or mandating the use of federal funds for religious purposes.³⁰ Continuing to adhere to its narrow interpretation of the Flast exception, the Court held four years later that taxpayers lacked standing to challenge Arizona’s provision of tax credits to individuals who contributed to scholarship organizations that funded students’ attendance at private religious schools.³¹ Because the tax credits did not compel individual taxpayers to support sectarian activities in the way that government spending could, the Court held that no aid flowed directly from the government to religious organizations, and therefore the plaintiffs could not surmount the general bar on taxpayer standing.³²

ArtIII.S2.C1.6.6.1 Overview of Representational Standing

Federal courts must sometimes decide whether a litigant who has not suffered an injury-in-fact may request judicial relief on behalf of an injured third party who has not appeared before the court. The presumption is that an uninjured litigant lacks standing to sue and cannot raise claims on behalf of a third party.¹ The Supreme Court, however, has at times permitted this form of “representational standing,” allowing certain relationships between an uninjured litigant and an injured third party to overcome that presumption.² Thus, for example, courts may permit representational standing when a formal association seeks to bring suit on behalf of its members;³ a state sues on behalf of its citizens;⁴ a plaintiff asserts a claim assigned to it by another party (e.g., a claim assigned to it by the government under a qui tam⁵ provision);⁶ or an agent brings suit on behalf of its principal.⁷ Such issues may also arise when a party brings a facial challenge to a law on First Amendment grounds, arguing that although the party itself is not subject to the law, it would be unconstitutional for the government to apply it to third parties with which the litigant has some form of close relationship (e.g., a business relationship).⁸

ArtIII.S2.C1.6.6.2 Associational Standing

Perhaps the most obvious context in which the Supreme Court confronts issues of representational standing is when a formal association sues to redress injury to its members. In the past, associations seeking relief in federal court have included environmental groups,¹ unions (i.e., associations of workers),² and trade associations (i.e., associations of businesses).³ While an organization may have standing to sue on its own behalf when it sustains an injury as an organization (e.g., a loss of membership),⁴ the Supreme Court held in Hunt v. Washington State Apple Advertising Commission, that an association has standing to sue to redress its members’ injuries, even when the association has not itself suffered injury, 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.”⁵

In subsequent decisions, the Supreme Court has elaborated on the three prongs of the Hunt test. The first two prongs of this three-part test reflect Lujan’s constitutional minimum requirements, assuring that the association possesses a genuine stake in the controversy and that the lawsuit involves a contest between adversarial parties.⁶ Therefore, Congress may not waive these requirements through the enactment of legislation. However, the third requirement for associational standing is a prudential limitation, focusing on “administrative convenience and efficiency,” that Congress may modify or eliminate in certain contexts.⁷ Applying the third prong, the Court has found that associations lack standing when, for example, it would be too difficult to establish individualized proof of injury for each member of an association that seeks monetary damages on behalf of its members⁸ or when resolving an association’s claims would require the Court to ascertain each member’s individual views on a particular matter.⁹ Nonetheless, Congress may override judicial concerns about the difficulty in establishing individualized proof for each member of an association if the association satisfies the first two elements of the Hunt test.¹⁰

ArtIII.S2.C1.6.6.3 States and Parens Patriae

A state has standing to sue in its sovereign capacity for injuries to its own interests.¹ For example, the Supreme Court upheld standing for: (1) Wyoming to sue Oklahoma for an injury to its ability to collect a specific tax that allegedly resulted from Oklahoma requiring its coal-fired electric utilities to burn at least 10% Oklahoma-mined coal;² (2) California to sue the Secretary of the Interior for injury to its financial interests from the Secretary of Interior choosing one form of bidding system over another in awarding leases for oil and gas exploration development of Outer Continental Shelf lands;³ and (3) several states from increased natural gas costs resulting from a Louisiana tax on natural gas imported into the state.⁴

However, a distinct issue of representational standing arises when a state seeks to sue on behalf of its citizens in federal court. The Supreme Court has long recognized that a state may sue as parens patriae—literally, “parent of his or her country”⁵—but only when it has a separate “sovereign interest” at stake in the outcome of the controversy.⁶ And while a state may sue to assert its rights under federal law, it may not sue to protect its citizens from federal law on the grounds that Congress has intruded upon an area of traditional state authority.⁷

For instance, in Massachusetts v. Mellon the State of Massachusetts sought to maintain a lawsuit against the federal government challenging the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.⁸ Massachusetts argued that Congress had usurped state powers over traditionally local matters in violation of the Tenth Amendment.⁹ The Supreme Court first found that the state lacked standing to sue on its own behalf because it had no separate sovereign interest that would be affected by the statute (e.g., a property interest).¹⁰ The Court then determined that Massachusetts lacked standing to sue as a representative of its citizens because it was the role of the federal government to act as representative, or parens patriae, of Massachusetts citizens with respect to federal laws.¹¹ As a result, the Court reasoned that Massachusetts lacked standing to pursue its Tenth Amendment claim, which sought to protect its citizens from a federal statute.¹²

Several decades later, the Supreme Court discussed a state’s standing to sue protect its sovereign interests in a major environmental case. In the 2007 case Massachusetts v. EPA, the Court held that the State of Massachusetts had standing to challenge the Environmental Protection Agency (EPA)’s denial of a petition asking the agency to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA).¹³ The Court determined that Massachusetts had standing for two major reasons. First, the Court held that the because the dispute involved the proper construction of the CAA, and because Congress had granted a specific procedural right in the Act to protect the state’s concrete interests in EPA’s regulatory actions, the state had a personal stake in the outcome and could assert that procedural right without meeting the normal standards for immediacy and redressability.¹⁴ Second, the Court deemed Massachusetts’ alleged injury—its loss of shore land from global-warming induced sea level rise—an independent quasi-sovereign interest in preserving its territory separate from its citizens’ interests and thus sufficient for standing.¹⁵

The Supreme Court’s reasoning in Massachusetts v. EPA did not endorse the concept of parens patriae standing generally, but it did recognize that the states “are not normal litigants for the purposes of invoking federal jurisdiction.”¹⁶ The court thus allowed Massachusetts’s suit as one that involved its rights under federal law (i.e., the CAA’s citizen-suit provision), and not solely an action (as in Mellon) involving a state seeking to protect its citizens from the operation of a federal statute.¹⁷ Although the Court also determined that Massachusetts had standing to sue for injury to its “quasi-sovereign” interest in protecting its territory, it is unclear whether the Court established a new precedent on a state’s standing to sue as parens patriae. The Court’s decision in Massachusetts v. EPA could be characterized as resting on principles of federalism and a state’s sovereign prerogative to regulate in-state motor vehicle emissions.

ArtIII.S2.C1.6.6.4 Assignees of a Claim

An assignment of a legal claim occurs when one party (the “assignor”) transfers its rights in a cause of action to another party (the “assignee”).¹ The Supreme Court has held that a private litigant may have standing to sue to redress an injury to another party when the injured party has assigned at least a portion of its claim for damages from that injury to the litigant. The Supreme Court in the 2000 case Vermont Agency of Natural Resources v. United States ex rel. Stevens held that private individuals may have Article III standing to bring a qui tam civil action in federal court under the federal False Claims Act (FCA) on behalf of the federal government if authorized to do so.² The FCA imposes civil liability upon “any person” who, among other things, knowingly presents to the federal government a false or fraudulent claim for payment.³ To encourage citizens to enforce the Act, in certain circumstances, a private individual, known as a “relator,” may bring a civil action for violations of the Act. Such plaintiffs sue under the name of the United States and may receive a share of any recovered proceeds from the action.⁴ Under the FCA, the relator is not merely the agent of the United States but an individual with an interest in the lawsuit itself.⁵

Ordinarily, if the relator’s financial interest in the outcome of the case were merely a byproduct of the suit itself, there would be no injury sufficient for standing.⁶ In Stevens, however, the Supreme Court recognized a distinction that confers standing upon qui tam plaintiffs in FCA cases. Justice Antonin Scalia, writing for the Court, determined that assignments of claims are distinguishable from cases in which a litigant has a mere financial interest in the outcome of the suit because the assignee-plaintiff actually owns a stake in the dispute as a legal matter.⁷ Justice Scalia drew support for this distinction from the long-standing historical practice of the government assigning a portion of its damages claim to a private party and allowing that party to assert the injury suffered by the federal government as a representative of the United States.⁸ The Court noted the “long tradition of qui tam actions in England and the American colonies,”⁹ concluding that “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’”¹⁰

Eight years after deciding Stevens, the Supreme Court again found that an assignee of a claim had standing, even when the assignee had promised to remit all of the money it recovered in the proceedings to the assignor.¹¹ In Sprint Communications Co. v. APCC Services, Inc., payphone operators had assigned their legal claims for money owed to them by long-distance communications carriers to third-party collection agencies.¹² The agencies were authorized to bring suit on behalf of the payphone operators and promised to pay all of the proceeds of the litigation to the payphone operators for a fee.¹³ The Court held that these collection agencies had standing to pursue the operators’ claims because of the long history of courts’ acceptance of such claims.¹⁴ Assignment was sufficient to transfer the injury to the collections agencies, and the injury to the operators that had been transferred to the collection agencies would be redressed by a favorable judicial decision, even if the agencies would subsequently pay all of the proceeds to the operators.¹⁵

The Stevens and Sprint cases could have broader implications for Article III standing doctrine, as they suggest a way in which the constitutional limitations on standing may be bypassed through the assignment of rights to a third party.¹⁶ For instance, if Congress enacts a federal statute recognizing an injury to the federal government that otherwise satisfies Article III’s requirements, it may assign a portion of its claim to a private party, thereby potentially giving that plaintiff standing to sue as a representative of the United States.¹⁷ This is essentially the operation of the False Claims Act.¹⁸ However, it is unclear whether every such statute would necessarily resolve all Article III standing concerns. In Stevens and Sprint, the Court gave significant weight to the lengthy history of courts recognizing the types of assignments at issue when determining that the litigants in those cases had standing to sue.¹⁹ Moreover, there may be a number of concerns about the constitutionality and practicality of using assignments to delegate core government functions (e.g., criminal prosecutions) to private parties when courts have not historically recognized claims based on such assignments, including concerns about interference with the Executive Branch’s Article II powers and prosecutorial discretion.²⁰

ArtIII.S2.C1.6.6.5 Agency and Standing

Broadly speaking, an agency relationship may arise when one person (a “principal”) and another person (an “agent”) agree that the agent will perform certain actions on behalf of the principal, subject to the principal’s control.¹ Such a relationship may also arise when the law authorizes one person to represent another person’s interests.² Agency relationships may raise questions of representational standing when an uninjured litigant acts as the authorized agent for another individual who has suffered an injury-in-fact by seeking relief in federal court on behalf of that individual. For example, if authorized by law, a parent might sue on behalf of an injured minor child. In order for such a litigant to seek relief for another party he must be officially authorized to do so (either by consent or as a matter of law), and the advocate’s relationship with the third party must exhibit some of the “most basic features of an agency relationship,” such as the right to control the agent’s actions.³

One form of “agency standing” is the common-law concept of “next friend standing,” which involves an uninjured third party pursuing legal claims for the benefit of an injured party who cannot appear in court on his own behalf.⁴ This form of representational standing is often implicated in the context of habeas corpus proceedings, in which a litigant seeks a judicial determination that a prisoner should receive a new trial, new sentence, or be released.⁵ For instance, in Whitmore v. Arkansas, a death row inmate challenged the constitutional validity of a death sentence imposed on a fellow capital defendant as a “next friend” of the defendant when the defendant decided not to appeal his sentence to the Arkansas Supreme Court.⁶ The U.S. Supreme Court determined that the third-party inmate lacked standing to bring an Eighth Amendment objection as the “next friend” of the capital defendant.⁷ The Court stated that the two-part test for “next friend” standing that the proposed next friend must meet in order to invoke federal court jurisdiction requires: (1) the real party in interest to be unable to “appear on his own behalf to prosecute the action” because of inaccessibility, mental incompetence, or other disability; and (2) the “next friend” to “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate” and to have a significant relationship with the real party in interest so that the next friend’s claims are not generalized grievances.⁸ In Whitmore, the proposed “next friend” failed to satisfy the first prong—and therefore lacked standing to sue—because he had not demonstrated that the real party in interest (i.e., the capital defendant) was unable to litigate the case due to disability after the defendant had voluntarily waived his right to appeal his sentence.⁹

The Supreme Court more recently discussed the limits of standing based on an agency theory in a case in which private parties sought to act as agents of the California government in a federal lawsuit. In Hollingsworth v. Perry, the Court considered a Fourteenth Amendment Equal Protection and Due Process Clause challenge to Proposition 8, a law that amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.¹⁰ A federal district court had invalidated Proposition 8, but state and local officials declined to defend that ruling on appeal, so the official “proponents” of the proposition, who were private parties, sought to defend the law. The Court held that it lacked the authority to address the validity of Proposition 8 on the merits because the proponents did not have standing to invoke the jurisdiction of the federal courts to defend the proposition.¹¹ The Court first held that the proponents lacked a “direct stake” in the outcome of their appeal and “their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.”¹² The Court then rejected the argument that the referendum proponents had standing because they were formally authorized to litigate on behalf of the State of California, as the litigants were private individuals rather than state officials or authorized agents of the state.¹³ In rejecting what the Court viewed as a “generalized grievance,” the Court emphasized that the proponents had no official role in enforcing California law distinguishable from the general interest of every citizen of California.¹⁴

Similarly, in Virginia House of Delegates v. Bethune-Hill, discussed below,¹⁵ the Supreme Court concluded that one chamber of the Virginia legislature lacked standing to represent the Commonwealth’s interests in appeal of a federal district court order requiring the redrawing of a 2011 legislative redistricting map for two reasons: (1) Virginia law designated the Virginia Attorney General as the commonwealth’s exclusive representative in litigation; and (2) the chamber claimed earlier in the litigation that it was vindicating its own interests, as opposed to those of Virginia.¹⁶

ArtIII.S2.C1.6.6.6 Overbreadth Doctrine

Generally, a litigant challenging a law as unconstitutional may not assert the rights of a third party, and thus he must show that the law is either unconstitutional as applied to him (i.e., an “applied challenge”)¹ or that there are no circumstances in which the law would be constitutional (i.e., a “facial challenge”).² However, there is an exception to this general rule known as the doctrine of overbreadth, which generally arises in the context of First Amendment challenges.³ The Supreme Court has held that prudential and constitutional limitations on third-party standing might not apply in cases in which the litigant brings a facial First Amendment challenge to a law as being substantially too broad and therefore chilling third parties’ rights protected by the First Amendment.⁴ The Court has permitted standing for such litigants when the law interferes with a potential or currently existing relationship (e.g., a business relationship) with a third party whose First Amendment rights could be hindered by the law.⁵

ArtIII.S2.C1.6.7 Federal and State Legislators and Standing

The Supreme Court has also created specific standing rules for federal courts to apply when members of a legislative body seek to uphold the effectiveness of their votes or vindicate their institution’s powers and prerogatives by suing (or defending) another unit of the same government in federal court.¹ The Court has held that legislators may have standing to sue in order to maintain the effectiveness of votes that they have cast in their capacity as legislators if their votes ultimately did not prevail. In Coleman v. Miller, twenty-four members of the Kansas state legislature sought a writ of mandamus compelling state officials to recognize that Kansas had not ratified an amendment to the Federal Constitution, the Child Labor Amendment,² challenging the way that the vote had been taken.³ Twenty of the members, who were senators, had voted to reject the amendment, but the measure ratifying the amendment nevertheless passed the state senate.⁴ The plaintiffs alleged that an illegal tie-breaking vote for ratification by the Lieutenant Governor had deprived their votes of effectiveness.⁵ Relying on several precedents, the Court held that the petitioners had “claimed a right and privilege under the Constitution . . . to have their votes given effect and the state court has denied that right and privilege.”⁶ Because the state legislators alleged that their votes had been voided by the improper procedure that led to the approval of the amendment, and those votes would have been sufficient to defeat the proposal, the legislators had a sufficient stake in the outcome that supported their standing to sue.⁷

Decades later, the Supreme Court took a more narrow view of individual legislator standing in Raines v. Byrd.⁸ In that 1997 case, six Members of Congress challenged the Line Item Veto Act of 1996 (LIVA), a statute that authorized the President to cancel certain spending and tax benefit measures after signing them into law, as contrary to the bicameralism and presentment requirements of the Constitution.⁹ The Members argued that they had suffered injury because LIVA altered the effect of the votes they would cast in the future and divested them of their constitutional role in the repeal of legislation.¹⁰

The Supreme Court, in an opinion written by Chief Justice William Rehnquist, found that the Members lacked standing to challenge LIVA because they had not suffered an injury different from that suffered by Congress as a whole.¹¹ Citing separation of powers concerns about resolving a dispute implicating the constitutional authority of Congress and the Executive in a lawsuit brought by legislators, the Court, in refusing to proceed to the merits, noted that the Member-plaintiffs had not suffered the concrete deprivation of a private right, like the loss of their seats in Congress, but instead alleged a general diminution of their political power.¹² The Court thus distinguished Raines from its earlier decision in Coleman on the grounds that the latter case had involved legislators who alleged that their votes had been nullified, whereas the LIVA challenged in Raines did not significantly impact the power of the Members’ votes because they could vote to exempt future appropriations bills from LIVA or repeal LIVA if necessary.¹³ Although the Court determined that it lacked jurisdiction over the Members’ claims, it left open the possibility that one or both houses of Congress—or perhaps a committee—would have standing to sue for redress of alleged institutional injuries to Congress if authorized by at least one of the Houses, provided that another legislative remedy was not available to them.¹⁴

In two state legislator standing cases that did not raise similar separation of powers concerns, the Supreme Court rested its standing analysis on the specific features of the state governments at issue. In the first case, Arizona State Legislature v. Arizona Independent Redistricting Comm’n, the Court considered a state ballot initiative that would vest the authority to draw legislative districts in an independent commission. The Arizona State Legislature, acting pursuant to an authorizing resolution, challenged that ballot initiative, claiming that it had suffered injured by a diminution in its legislative authority.¹⁵ Noting that the case did not raise separation of powers concerns that might arise if Congress sued the President, the Court held that the Arizona legislature was a proper party to sue because, like the plaintiffs in Coleman, it had lost the opportunity to adopt a redistricting plan (i.e., its members’ votes were nullified).¹⁶ Moreover, such an institutional injury to the legislature could serve as the basis for a lawsuit, at least when the legislature authorized suit by enacting a resolution in each chamber.¹⁷

By contrast, in Virginia House of Delegates v. Bethune-Hill, the Supreme Court held that a single house of the bicameral Virginia state legislature lacked standing to appeal a federal district court order requiring the redrawing of a 2011 legislative redistricting map.¹⁸ The Virginia House of Delegates (House) had previously intervened to defend the constitutionality of the legislative redistricting plan against a voter-led Fourteenth Amendment Equal Protection Clause challenge, but the Virginia Attorney General, who was the primary defending party, had decided not to appeal an unfavorable ruling.¹⁹ As discussed, in determining that the House lacked standing to appeal on behalf of the state, the Court noted that Virginia law assigned the Virginia Attorney General the task of representing the state in appeals like the one before the Court.²⁰ Moreover, the Attorney General had not delegated such litigation authority to the House of Delegates.²¹ Unlike in Arizona State Legislature, the House lacked standing to appeal in its own right because it was a single component of the bicameral state legislature responsible for redistricting and could thus not assert the interests of the legislature as a whole.²² Moreover, the House’s alleged injury (i.e., invalidation of a state redistricting law) was not cognizable for standing purposes as it did not permanently deprive the House of its role in redistricting and the House did not suffer a cognizable injury merely because its composition (and, therefore, the content of legislation) could be altered by the electorate as a result of a redrawn redistricting map.²³ In this regard, the Court noted that the invalidation of the redistricting law did not infringe upon the unique legislative powers of the Virginia House by altering the manner in which it conducted its day-to-day-operation (e.g., by altering its committee structure).²⁴

ArtIII.S2.C1.6.8 Congressional Control of Standing

In addition to interpreting Article III as a limit on the categories of litigants who may maintain a lawsuit in federal court, the Supreme Court has also held that the Constitution constrains Congress’s ability to confer standing on private individuals through the enactment of “citizen-suit” provisions that authorize private individuals to enforce federal laws against the government or private parties.¹ Congress may elevate certain categories of harm to the status of cognizable Article III injuries, such as economic injury that results from lawful competition² or social and professional injury resulting from living in a racially segregated community.³ It may not, however, abrogate Article III constraints on federal court jurisdiction by conferring standing on private parties in the absence of a material risk of particularized injury to them from the defendant’s violations of their statutory rights.⁴

A major case addressing the constitutional limits on the scope of Congress’s authority to create statutory rights for private citizens (or a class of citizens) to sue is Lujan v. Defenders of Wildlife.⁵ In Lujan, Justice Antonin Scalia, writing for the majority, stated that Article III generally limits Congress’s ability to create standing by allowing a plaintiff to sue for procedural injuries even where the defendant’s violation of the plaintiff ’s statutory rights would not cause the plaintiff any other concrete injury.⁶ Although Congress may relax the Article III standards for immediacy and redressability of the injury in such provisions,⁷ Congress cannot create standing for redress of generalized grievances about government by providing litigants with an “abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.”⁸ To allow Congress to do so through enactment of provisions providing private rights of action would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” and make the courts the continuing monitors of Executive action.⁹

Justice Anthony Kennedy wrote a separate concurrence in Lujan in which he suggested that Congress has broad authority to confer standing on private parties in citizen-suit provisions, so long as it explicitly creates procedural rights and concrete interests for citizens to sue upon.¹⁰ Noting that government policies had become more “far-reaching” and that “we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition,”¹¹ Justice Kennedy wrote that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before . . . . In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.”¹² Determining that the citizen-suit provision at issue in Lujan did not specifically provide that “any person” would suffer a cognizable injury as a result of any statutory violation, Justice Kennedy agreed that the plaintiff environmental group lacked standing to sue.¹³

The Court decided FEC v. Akins, a 1998 case, consistently with Justice Kennedy’s views, holding that Congress may confer standing by providing a general procedural right of access to information to “any party,” and that deprivation of this right is a sufficiently concrete injury for standing purposes and not a generalized grievance.¹⁴ More than a decade later, in Massachusetts v. EPA, a majority of the Court formally adopted Justice Kennedy’s view that Congress may create standing to sue by identifying cognizable injuries and creating procedural rights for citizens to sue upon to redress those injuries.¹⁵ In Summers v. Earth Island Institute, the Supreme Court reaffirmed that the deprivation of a litigant’s procedural right—the right to use a federal administrative appeals process to challenge certain actions of the U.S. Forest Service—without injury to any separate concrete interest cannot support Article III standing to sue.¹⁶ But, in a concurrence, Justice Kennedy again suggested that the result would have been different—and Massachusetts v. EPA would have applied—if Congress had specifically identified a separate concrete interest that would have been affected by the deprivation of the procedural right.¹⁷

As the Court held more recently in Spokeo v. Robins, federal courts will judge whether the defendant’s alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether it is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”¹⁸ But in doing so, courts must give at least some weight to Congress’s judgments about which intangible harms amount to concrete Article III injuries.¹⁹

The principle emerging from these cases is that Congress has some ability to expand standing beyond the Court’s traditional conception by granting a litigant a separate concrete interest, apart from a bare procedural right, that could serve as the basis for an injury-in-fact if violated.²⁰ At the same time, Congress must respect the limits that Article III establishes, and it cannot elevate certain categories of harm to the status of concrete injuries. For example, Congress likely cannot elevate a trivial injury, such as a company reporting an incorrect zip code for an individual, to the status of an Article III injury.²¹ The Court has not articulated a clear rule for distinguishing between the types of intangible harms Congress may elevate to injuries-in-fact for standing purposes and those harms that are simply too trivial to serve as Article III injuries.²² However, the Court has confirmed that it will independently review whether such harms are in fact “concrete injuries” sufficient for standing purposes.²³

ArtIII.S2.C1.6.9.1 Overview of Prudential Standing

Even when a litigant satisfies Article III’s constitutional standing requirements, a federal court may refuse to adjudicate its claims for relief “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.”¹ The Supreme Court has applied these prudential principles to standing doctrine² in several circumstances. A court may refuse to hear a case as a matter of self-restraint in at least three situations: (1) when the litigant seeks to assert the rights of third parties not before the court; (2) when the litigant seeks redress for a generalized grievance widely shared by a large number of citizens that is better addressed legislatively; and (3) when the litigant’s asserted interests do not fall within the zone of interests arguably protected or regulated by the statute or constitutional provision underlying its claims.³

At least the first two of these situations also implicate the concerns of constitutional standing in some cases, while the third appears to be purely prudential. Thus, more recently, the Court has questioned whether the doctrine of prudential standing should even exist, indicating that the bar on generalized grievances is a constitutional (and not prudential) requirement and rejecting a prudential application of the “zone of interests” test in favor of one aimed at determining whether the plaintiff ’s claim falls within the scope of a statutory provision conferring a right of action.⁴ Regardless of the uncertain state of the law in this area, Congress may abrogate prudential standing requirements through the enactment of legislation containing express language to that effect.⁵ As discussed, while Congress may eliminate or modify prudential standing limits, it cannot supersede the Article III minimum requirements of injury, causation, and redressability.⁶

ArtIII.S2.C1.6.9.2 Zone of Interests Test

One type of prudential standing limitation that may counsel against the exercise of jurisdiction over a dispute involves the application of the “zone of interests” test, which asks whether the litigant’s grievance arguably¹ falls within the scope of the statute or constitutional provision in question.² This test is “not meant to be especially demanding,”³ and the Supreme Court has sometimes applied it liberally, finding it to be satisfied even when Congress has not specifically intended to protect a particular litigant’s interests.⁴ For example, the Court determined that irrigation districts and operators of ranches had prudential standing to sue under a citizen-suit provision of the Endangered Species Act—a statute directed primarily at furthering environmental protection—to challenge the Fish and Wildlife Service (FWS)’s enforcement of the Act.⁵ The Court found that the litigants had standing even though they alleged that the FWS’s actions would cause them economic (and not environmental) harm by reducing the amount of water they would receive from a federal water-management project for their activities.⁶ And the Court also concluded that tenants of an apartment complex had prudential standing to sue their landlord under the Fair Housing Act for allegedly discriminatory rental practices.⁷ The Court reached this result even though the tenants themselves were not directly subject to such practices because Congress intended to confer standing on “all in the same housing unit who are injured by racial discrimination,” such that depriving the residents of the benefits of interracial association qualified as a cognizable injury under the Act.⁸

Although the Supreme Court has often categorized the “zone of interests” test as a prudential limitation on the Court’s exercise of its jurisdiction, in the recently decided case Lexmark, International, Inc. v. Static Control Components, Inc., Justice Antonin Scalia, writing for the Court, stated that “it does not belong there” and that a court applying the test should use traditional tools of statutory interpretation to ascertain whether a plaintiff has a right to sue under a particular provision creating a substantive cause of action.⁹ Thus, the Court may have ceased to regard the zone-of-interests test as an aspect of prudential standing, although it is unclear how this change to the doctrine will practically affect the Court’s application of the “zone of interests” test in future cases.

ArtIII.S2.C1.6.9.3 Third Party Standing

Second, as discussed above, the Supreme Court has stated that courts may refuse to allow litigants who have suffered an injury-in-fact to rest their claims for relief on third parties’ rights.¹ The Court has characterized such prudential restraints as “not constitutionally mandated” and “designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.”² Although the Court has found prudential standing to be present in several cases,³ it has shown a reluctance to allow litigants to assert the rights of third parties because those parties may not need or wish to assert those rights, and courts prefer to avoid unnecessary decisions on constitutional issues.⁴ Furthermore, a litigant may be a less effective advocate for the third parties’ rights than the third parties themselves.⁵

Barrows v. Jackson illustrates the prudential application of “third-party standing.”⁶ In that case, homeowners sued a neighbor for the alleged breach of a private covenant forbidding the use and occupancy of homes in the neighborhood by “non-Caucasians.”⁷ The Court had previously held that the Fourteenth Amendment forbade a state court from enforcing such racially restrictive covenants against African-American purchasers of real estate through the award of damages.⁸ However, in Barrows, no African-Americans had appeared before the court to assert their constitutional rights, and, indeed, the Court found that it would have been difficult for them to do so because they were not property owners subject to the covenant.⁹ But the Court waived the normal prudential standing rule against third-party standing and determined that the defendant property owner could rely upon the state court’s interference with third-party rights in her defense because: (1) she would suffer injury if she lost by having to pay damages for breach of the covenant; and (2) the African-Americans (i.e., the third parties) who would be injured by the enforcement of the covenant were unlikely to be able to assert their constitutional rights themselves.¹⁰

Thus, although a litigant may not generally challenge government action on the grounds that it infringes another’s rights,¹¹ it may do so in certain narrowly defined contexts. As this section has discussed, standing may be found when a litigant challenges a statute as unconstitutionally overbroad on its face in violation of the First Amendment¹² or when the litigant suffers some injury and third parties whose rights the litigant relies upon face an obstacle to protecting their own interests.¹³ The Supreme Court has also permitted criminal defendants to challenge their convictions by asserting the rights of persons not before the Court whose rights would be negatively affected by enforcement of the law in question.¹⁴ These circumstances are relevant to a prudential standing inquiry as well as to constitutional standing.

ArtIII.S2.C1.6.9.4 Generalized Grievances

Finally, federal courts may refuse on prudential grounds to entertain “generalized grievances,” which are “abstract questions of wide public significance . . . pervasively shared and most appropriately addressed in the representative branches.”¹ Although the Court has at times characterized the bar on generalized grievances as prudential,² in dicta in the 2014 case Lexmark International, Inc. v. Static Control Components, Inc. the Court stated that cases raising generalized grievances “are barred for constitutional reasons, not ‘prudential’ ones.”³ The Court’s opinion in Lexmark thus casts doubt on the continued viability of the prudential standing doctrine—both because of the Court’s determination that the bar on generalized grievances is a constitutional (and not prudential) requirement and its rejection of the “zone of interests” test in favor of one aimed at determining whether the plaintiff ’s claim falls within the scope of a statutory provision conferring a right of action.⁴

Despite uncertainty regarding the continuing viability of the prudential standing doctrine, the constitutional minimum requirements of standing remain one of the most important justiciability doctrines. The courts have consistently applied that doctrine to implement Article III’s limits on federal judicial power. Those limits require courts to decide actual “cases” or “controversies” rather than to render opinions on abstract questions better suited for resolution by the political branches of government.⁵