Article III, Section 2, Clause 1:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Perhaps the most important element of the requirement of adverse parties may be found in the complexities and vagaries
of the standing doctrine. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.
1 The gist of the question of standing
is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
2 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. [T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper—and properly limited—role of the courts in a democratic society.’
3
Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions,4 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.5 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint, and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court's generalizations and the results it achieves are often at variance.6
The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts.7
Generalized or Widespread Injuries
Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing.8 The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.
9
Notwithstanding that a generalized injury that all citizens share is insufficient to confer standing, where a plaintiff alleges that the defendant's action injures him in a concrete and personal way,
it does not matter how many [other] persons have [also] been injured. . . . [W]here a harm is concrete, though widely shared, the Court has found injury in fact.
10
Constitutional Standards: Injury in Fact, Causation, and Redressability
Although the Court has been inconsistent, it has now settled upon the rule that, at an irreducible minimum,
the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have: 1) suffered some actual or threatened injury; 2) that injury can fairly be traced to the challenged action of the defendant; and 3) that the injury is likely to be redressed by a favorable decision.11
For a time, the actual or threatened injury requirement noted above included an additional requirement that such injury be the product of a wrong which directly results in the violation of a legal right.
12 In other words, the injury needs to be one of property, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege.
13 It became apparent, however, that the legal right
language was demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.
14 Despite this test, the observable tendency of the Court was to find standing in cases which were grounded in injuries far removed from property rights.15
In any event, the legal rights
language has now been dispensed with. Rejection of this doctrine occurred in two administrative law cases in which the Court announced that parties had standing when they suffered injury in fact
to some interest, economic or otherwise,
that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.16 Political,17 environmental, aesthetic, and social interests, when impaired, now afford a basis for making constitutional attacks upon governmental action.18 But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.
19 Moreover, while Congress has the power to define injuries and articulate chains of causation
that will give rise to a case or controversy, a plaintiff does not automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize a person to sue to vindicate that right.
20
The breadth of the injury-in-fact
concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices, even where discriminatory action was not directed against parties to a suit, Theses case held that the subjective and intangible interests of enjoying the benefits of living in integrated communities were sufficient to permit them to attack actions that threatened or harmed those interests.21 Or, there is important case of FEC v. Akins,22 which addresses the ability of Congress to confer standing and to remove prudential constraints on judicial review. Congress had afforded persons access to Commission information and had authorized any person aggrieved
by the actions of the FEC to sue. The Court found injury-in-fact
present where plaintiff voters alleged that the Federal Election Commission had denied them information respecting an organization that might or might not be a political action committee.23 Another area where the Court has interpreted this term liberally are injuries to the interests of individuals and associations of individuals who use the environment, affording them standing to challenge actions that threatened those environmental conditions.24
Even citizens who bring qui tam actions under the False Claims Act—actions that entitle the plaintiff (relator
) to a percentage of any civil penalty assessed for violation—have been held to have standing, on the theory that the government has assigned a portion of its damages claim to the plaintiff, and the assignee of a claim has standing to assert the injury in fact suffered by the assignor.25 Citing this holding and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the litigation to the assignor.26 The Court noted that federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; and so forth.
27
Beyond these historical anomalies, the Court has indicated that, for parties lacking an individualized injury to seek judicial relief on behalf of an absent third party, there generally must be some sort of agency relationship between the litigant and the injured party.28 In Hollingsworth v. Perry,29 the Court considered the question of whether the official proponents of Proposition 8,30 a state measure that amended the California Constitution to define marriage as a union between a man and a woman, had standing to defend the constitutionality of the provision on appeal. After rejecting the argument that the proponents of Proposition 8 had a particularized injury in their own right,31 the Court considered the argument that the plaintiffs were formally authorized through some sort of official act to litigate on behalf of the State of California.
Although the proponents were authorized by California law to argue in defense of the proposition,32 the Court found that this authorization, by itself, was insufficient to create standing. The Court expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still acting as private individuals, not as state officials33 or as agents that were controlled by the state.34 Because the proponents did not act as agents or official representatives of the State of California in defending the law, the Court held that the proponents only possessed a generalized interest in arguing in defense of Proposition 8 and, therefore, lacked standing to appeal an adverse district court decision.35
More broadly, the Court has been wary in constitutional cases of granting standing to persons who alleged threats or harm to interests that they shared with the larger community of people at large; it is unclear whether this rule against airing generalized grievances
through the courts36 has a constitutional or a prudential basis.37
In a number of cases, particularly where a plaintiff seeks prospective relief, such as an injunction or declaratory relief, the Supreme Court has strictly construed the nature of the injury-in-fact necessary to obtain such judicial remedy. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking relief cannot articulate a concrete harm.38 For example, in Laird v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury stemmed from a subjective chill
, as opposed to a claim of specific present objective harm or a threat of specific future harm.
39 And in Spokeo, Inc. v. Robins, the Court explained that a concrete injury requires that an injury must actually exist
or there must be a risk of real harm,
such that a plaintiff who alleges nothing more than a bare procedural violation of a federal statute cannot satisfy the injury-in-fact requirement.40
Second, the Court has required plaintiffs seeking equitable relief to demonstrate that the risk of a future injury is of a sufficient likelihood; past injury is insufficient to create standing to seek prospective relief.41 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways,42 generally refusing to find standing where the risk of future injury is speculative.43 More recently, in Clapper v. Amnesty International USA, the Court held that, in order to demonstrate Article III standing, a plaintiff seeking injunctive relief must prove that the future injury, which is the basis for the relief sought, must be certainly impending
; a showing of a reasonable likelihood
of future injury is insufficient.44 Moreover, the Court in Amnesty International held that a plaintiff cannot satisfy the imminence requirement by merely manufacturing
costs incurred in response to speculative, non-imminent injuries.45 A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus46 reaffirmed that pre-enforcement challenges to a statute can occur under circumstances that render the threatened enforcement sufficiently imminent.
47 In Susan B. Anthony List, an organization planning to disseminate a political advertisement, which was previously the source of an administrative complaint under an Ohio law prohibiting making false statements about a candidate or a candidate's record during a political campaign, challenged the prospective enforcement of that law. The Court, in finding that the plaintiff's future injury was certainly impending, relied on the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that any person
could file a complaint under the law, and any threat of enforcement of the law could burden political speech.48
Of increasing importance are causation and redressability, the second and third elements of standing, recently developed and held to be of constitutional requisite. A plaintiff must show its injuries are fairly traceable to the conduct complained of.49 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, because they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them.50 Or, low-income persons seeking the invalidation of a town's restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained-of injury—inability to obtain adequate housing within their means—was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing.51 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school.52
But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that but for
the passage of the law there was a substantial likelihood,
based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries.53 And in a case where a creditor challenged a bankruptcy court's structured dismissal of a Chapter 11 case that denied the creditor the opportunity to obtain a settlement or assert a claim with litigation value,
the Court held that a decision in the creditor's favor was likely to redress the loss.54 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have injured the claimants as a consequence.55
In a case permitting a plaintiff contractors' association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too speculative
or too contingent.
56 The association had sued, alleging that many of its members regularly bid on and perform construction work
for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause established a relevant proposition. When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.
57 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis.58
Redressability can be present in an environmental citizen suit
even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones.
59