Standing

Pages 386-430

STANDING

The Standing doctrine as developed by the court over the years comprises:

 an ‘‘irreducible constitutional minimum’’ derived from the Constitution and

 ‘‘prudential’’ standing doctrines that are not constitutionally compelled and thus may be altered

In Lujan v.Defenders of Wildlife, the court articulated standing’s irreducible constitutional minimum
requirements as

 plaintiffs to have suffered injury-in-fact that is

 fairly traceable to the defendant’s alleged unlawful conduct
 likely be redressed by a favorable decision

In addition to these constitutional requirements, the Court also has identified three prudential standing
principles. The Court has said that these are based not on the Constitution, but instead on prudent
judicial administration. Unlike constitutional barriers, Congress may override prudential limits by
statute.

Prudential standing requirements:

 a party generally may assert only his or her own rights and cannot raise the claims of third
parties not before the court.
 a party must raise a claim within the zone of interests protected by the statute in question

Values Served by Limiting Standing

 First, the standing doctrine promotes separation of powers by restricting the availability of
judicial review. The notion is that by restricting who may sue in federal court, standing limits
what matters the judiciary will address and minimizes judicial review of the actions of the other
branches of government.
 Second, standing is said to serve judicial efficiency by preventing a flood of lawsuits by those
who have only an ideological stake in the outcome. “Should the courts seek to expand their
power so as to bring under their jurisdiction ill-defined controversies over constitutional issues,
they would become the organs of political theories.
 Third, standing is said to improve judicial decision making by ensuring that there is a specific
controversy before the court and that there is a party with a sufficient personal concern to
effectively litigate the matter.

Constitutional requirements:

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Injury:

Injury -in-fact requires that the injury be ‘‘concrete and particularized’’—meaning that it must affect
the plaintiff in a ‘‘personal and direct way.’’

The injury does not have to be economic or be an injury to common-law, statutory, or constitutional
rights. One can claim injury to an aesthetic interest or environmental harm, but the injury has to be one
suffered personally by the plaintiff. See eg, Sierra Club v. Morton (1972), Massachusetts v. E.P.A. (2007)

In Allen v. Wright, (1984), the Court rejected the claims of parents of Memphis schoolchildren who
argued that the IRS’s grant of tax-exempt status to schools with racially discriminatory policies deprived
their children of the opportunity to attend integrated public schools. The Court held that the injury
described by the parents was abstract—plaintiffs didn’t allege that their children were the specific
victims of the harm caused by private schools with discriminatory admissions policies and thus they
lacked the personal injury sufficient to maintain standing. The Court explained: “[ Stigmatic injury]
accords a basis for standing only to those persons who are personally denied equal treatment.….”

Further, the injury must be ‘‘actual and imminent, not ‘conjectural’ or ‘hypothetical.’’’ That is, the injury
must have happened or be fairly certain to happen soon.

In City of Los Angeles v. Lyons the Court rejected a bid to enjoin the Los Angeles Police Department
from using a particular type of chokehold in a case brought by a motorist Lyons, who had been
subjected to it during a traffic stop. The Court concluded that “absent a sufficient likelihood that he will
again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of
Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert
that certain practices of law enforcement officers are unconstitutional.” Lyons thus establishes that in
order for a person to have standing to seek an injunction, the individual must allege a substantial
likelihood that he or she will be subjected in the future to the allegedly illegal policy.

The Lyons decision has been strongly criticized. First, some have argued that the Court incorrectly
assumed that Lyons would suffer an injury in the future only if he would be choked again. It could be
argued that Lyons would continue to suffer a psychological injury, fear of being subjected to a similar
chokehold, so long as the police policy remained unchanged.

Similarly, in Lujan the court considered a challenge to a revision of a federal regulation that provided
that the Endangered Species Act does not apply to United States government activities outside the
United States or on the high seas. Although the plaintiffs testified that they had traveled abroad to view
endangered species in the past, none testified to any firm plans to do so in the future. Without any
definite plans to travel in the future, the injury was too speculative to sustain standing.

The Court also regularly denies standing to plaintiffs whose injury can be characterized as a
‘‘generalized grievance’’ or as a type of ‘‘psychic injury’’ caused by the knowledge that governmental
officials aren’t following the law.

The prohibition against generalized grievances prevents individuals from suing if their only injury is as a
citizen or a taxpayer concerned with having the government follow the law.

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Citizenship suits:

The Court has never been willing to recognize standing on the part of individuals as citizens to object to
unlawful or unconstitutional conduct. This refusal has been based upon the view that one citizen’s
interest in lawful government is no different from that of any other citizen, and that an individual litigant
relying upon citizenship has not shown the “individualized” injury-in-fact required for standing.

In Schlesinger v. Reservists to Stop the War 1974, the plaintiffs sued to enjoin members of Congress from
serving in the military reserves. Article I, § 6, of the Constitution prevents a senator or representative
from holding civil office. Standing was denied because the plaintiffs alleged injury only as a citizen or
taxpayer with an interest in having the government follow the law and not a violation of a specific
constitutional right.

Taxpayer suits:

In Frothingham v. Mellon, the plaintiff, suing as a taxpayer, sought to restrain expenditures under the
Federal Maternity Act of 1921, which provided financial grants to the states to reduce maternal and
infant mortality. The plaintiff asserted that the expenditures violated the Tenth Amendment's
reservation of powers to the state governments. The Supreme Court ruled that the plaintiff lacked
standing because her “interest in the moneys of the treasury … is comparatively minute and
indeterminable.”

In Flast, the Court upheld a taxpayer's standing to challenge federal subsidies to parochial schools as
violating the First Amendment's prohibition against government establishment of religion. Under the
Elementary and Secondary Education Act of 1965, the federal government provided funds for
instruction in secular subjects in parochial schools. The lower court dismissed the plaintiff's challenge to
the Act based on Frothingham, concluding that the plaintiff's only claim was as a taxpayer and that such
standing was not permitted. The Supreme Court reversed, allowing standing.

The Court distinguished Flast from Frothingham because although both involved challenges to
government spending programs, the First Amendment is a limit on Congress's taxing and spending
authority, whereas the Tenth Amendment, at issue in Frothingham, is not. Flast raised speculation that
the Court had substantially expanded the availability of taxpayer standing.

Specifically, the Court said that in order to sue as a taxpayer the plaintiff needed to establish two
factors.

 First, “the taxpayer must establish a logical link between that status and the type of legislative
enactment attacked.” The Court said that this meant that a taxpayer could challenge only the
expenditure of funds under the taxing and spending clause of the Constitution and not “an
incidental expenditure of tax funds in the administration of an essentially regulatory statute.”
 Second, the “taxpayer must establish a nexus between that status and the precise nature of the
constitutional infringement alleged.” In other words, the taxpayer must argue that Congress is
violating a particular constitutional provision with the expenditure and not just that Congress is
exceeding the scope of its powers under the Constitution.

The Court further restricted taxpayer standing in the establishment clause context in Hein v. Freedom
from Religion Foundation. Upon taking office, President George W. Bush created a White House office

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and several centers in executive branch offices to provide government funds to “faith-based
institutions.” This was designed to facilitate churches, synagogues, and mosques directly receiving
federal money to provide social services. The White House Office of Faith-Based and Community
Initiatives was funded entirely through general executive revenue. Taxpayers brought a suit challenging
this as violating the establishment clause. The Court ruled, without a majority opinion, that the
taxpayers lacked standing. Justice Alito announced the judgment for the Court and distinguished Flast v.
Cohen as involving expenditures under a specific federal statute, whereas the money for the White
House Office of Faith-Based and Community Initiatives came from general executive revenue. Justice
Alito, in an opinion joined by Chief Justice Roberts and Justice Kennedy, explained: “The link between
congressional action and constitutional violation that supported taxpayer standing in Flast is missing
here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask
the Court to invalidate any congressional enactment or legislatively created program as unconstitutional.
That is because the expenditures at issue here were not made pursuant to any Act of Congress.… Those
expenditures resulted from executive discretion, not congressional action.”

Hein limited Flast to cases in which plaintiffs are challenging ‘‘exercises of congressional power based on
the taxing and spending clause’’ under specific constitutional limits to those congressional powers, such
as the Establishment Clause. The plaintiffs in Hein were challenging executive branch expenditures of
monies appropriated to it by Congress, as opposed to direct expenditures by Congress itself.

After Hein, the only situation in which taxpayer standing appears permissible is if the plaintiff
challenges a government expenditure pursuant to a specific statute as violating the establishment
clause.

Key Cases Concerning Causation and Redressability

In addition to injury in fact, a plaintiff needs to show:

 causation— the plaintiff must allege that the defendant's conduct caused the harm and
 redressability— the plaintiff must allege that a favorable court decision is likely to remedy the
injury.

They are so often linked that they are sometimes fused together in discussion as a single ‘nexus’
requirement

in Warth v. Seldin several plaintiffs claims failed on both causation and redressability concerns. The
plaintiffs challenged the unconstitutionality of exclusionary zoning practices in Penfield, New York, a
suburb of Rochester. The plaintiffs included Rochester residents who wanted to live in Penfield, but
claimed that they could not because of the zoning practices that prevented construction of multifamily
dwellings and low-income housing. Also, an association of home builders that wanted to construct such
housing joined as plaintiffs in the suit. The Supreme Court held that these plaintiffs lacked standing—
even though they alleged violations of their constitutional rights— because they could not demonstrate
that but for the zoning laws of Penfield, New York, there would be low-income housing and, perforce,
economic diversity in the town. Further there was no proof that low-income housing would follow
ineluctably from the invalidation of the residential zoning rules in Penfield.

In Allen v Wright, the claim failed on the causation requirement. In this case, parents of Memphis
schoolchildren argued that the IRS’s grant of tax-exempt status to schools with racially discriminatory

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policies deprived their children of the opportunity to attend integrated public schools. The Court found
no evidence that the inability of the plaintiffs’ children to attend an integrated public school was fairly
traceable to the IRS.

In both Warth v Seldin and Allen v Wright, the real harm was caused by private parties whose actions
might not be influenced by changes in government policy sought by the plaintiffs. These cases illustrate
that the causation/ redressability standing requirements are a powerful barrier to federal court review.

Causation and redressability requirements have been criticized because they are inherently factual
questions which should not be made at the outset of a lawsuit. A second criticism of the causation/
redressability requirement is that it is inherently unprincipled because it depends entirely upon how a
court chooses to characterize the plaintiff's injury.

In contrast with Warth v Seldin (see above), in Village of Arlington Heights v. Metropolitan Housing
Development Corp., the Court allowed the plaintiffs standing to challenge a suburb's exclusionary
zoning.In Arlington case, builders had developed specific plans for low-income housing that had been
rejected, whereas no such plans existed in Penfield, New York. The Court stated that there was a
“sufficient probability” that this housing project would be built, affording the plaintiff a chance to live in
Arlington Heights.In Arlington, the court cognized standing even though the developers did not have
financing and required substantial government subsidies. The Courts characterization of the injury
determines redressability which makes it arbitrary.

Prudential standing:

The Court has also articulated standing rules that follow from the Court’s self-imposed restraints rather
than from the constitutional strictures in Article III. Unlike those constitutional standing rules, the
prudential rules may be altered by Congress. Two main prudential standing rules are listed below:

 third-party standing rules- barring the assertion by one plaintiff of another’s interest and
 zone of interest requirement-a plaintiff must assert her own rights, not those of a third party.

Third party standing/ Jus Tertii standing prohibition

The ban on third-party standing avoids “the adjudication of rights which those before the Court may not
wish to assert.” Requiring people to assert only their own injuries improves the quality of litigation and
judicial decision making. In part, this is because the Court believes that the “third parties themselves
usually will be the best proponents of their own rights.”

But the Supreme Court has recognized four major exceptions to the prohibition against third-party
standing.

(1) The third party is unable to assert her rights and there is reason to believe the plaintiff will assert the
rights of that third party adequately. In Eisenstadt v. Baird, 405 U.S. 438, 446 (1972), for example, a
pharmacist prosecuted for selling contraceptives to unmarried persons was allowed to assert the rights
of those persons to purchase contraceptives, because unmarried persons were not subject to criminal
liability.

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(2) There is a special relationship between the plaintiff and a third party, as between a parent and a
child, for example. The Court also has allowed vendors to assert the rights of their customers based on
this exception to the rule against third-party standing. The most famous example of this is Craig v.
Boren. Oklahoma adopted a law permitting women to buy 3.2 percent beer at age 18, but denying men
that privilege until age 21. A bartender sought to challenge the law on behalf of male customers
between the ages of 18 and 21.

(3) In some cases, plaintiffs are permitted to challenge laws as constitutionally overbroad(overbreadth
doctrine)—that is, the law may be constitutional as applied to the plaintiff, but would be
unconstitutional in other applications. Overbreadth doctrine provides that “[ g] iven a case or
controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by
showing that it substantially abridges the First Amendment rights of other parties not before the
court.”

(4) Finally, the Court has permitted organizations to bring suit on behalf of itself or its members as long
as certain criteria are met. First, its members would have to have standing in their own right to bring
suit. Second, the interests asserted have to be related to the organization’s purpose. Third, neither the
claim nor the relief sought requires the participation, as parties, of the organization’s members. See,
e.g., Hunt v. Washington State Apple Advertising Commission, (1977) (holding that a member-elected
advertising commission had standing to bring a constitutional challenge against a North Carolina
regulation that discriminated against Washington State apple producers).

Requirement That the Plaintiff Be Within the Zone of Interests Protected by the Statute

This requirement applies when a person is challenging an administrative agency regulation that does not
directly control the person's actions.

The zone of interests test was first articulated by the Supreme Court in Association of Data Processing
Service Organizations, Inc. v. Camp. The plaintiff challenged a ruling by the comptroller of the currency
to allow banks to make data processing services available to other banks and bank customers. Although
the data processors clearly were injured by the comptroller's decision, there was a question about
whether they had standing to sue. Under the Administrative Procedures Act, a person may seek judicial
review of an agency decision if he or she is “aggrieved by agency action within the meaning of a relevant
statute.” The Court said that a person has standing under this provision if he or she has suffered an
injury and if “the interest sought to be protected by the complainant is arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in question.”

The Court concluded that the data processors were arguably within the zone of interests protected by
the Bank Service Corporation Act of 1962, which prohibited bank service corporations to “engage in any
activity other than the performance of bank services for banks.”

In contrast, in Air Courier Conference v. American Postal Workers Union, the postal workers' union
challenged the United States Postal Service's suspension of its monopoly over “extremely urgent” letters
under the Postal Express Statutes. The Supreme Court ruled that the unions lacked standing because

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postal workers’ union were not within the zone of interests protected by the Postal Express statutes.
The court opined that “[ t] he particular language of the statutes provides no support for respondents'
assertion that Congress intended to protect jobs with the Postal Service.”