The Court Continues to Confuse Standing: The Pitfalls of Faux Article III “Originalism”

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The Court Continues to Confuse Standing: The Pitfalls of Faux Article III “Originalism”

Robert J. Pushaw, Jr.

Volume 31

, Issue 3

31 GEO. MASON L. REV. 893 (2024)

Introduction

Although the Supreme Court has radically reduced the number of its published decisions, it continues to devote disproportionate attention to Article III standing¹¾the doctrine that determines who can sue in federal court.² For example, five of the Court’s fifty-eight cases in its 2022–23 Term involved standing.³ Such detailed consideration, however, has not improved this doctrine’s coherence.

To be sure, all of the Justices agree that Article III, by extending federal judicial power to “Cases” and “Controversies,” restricts standing to plaintiffs who have a “‘personal stake’” in a genuine dispute with an adverse defendant:⁴

Our jurisprudence has “established that the irreducible constitutional minimum of standing contains three elements” that a plaintiff must plead and¾ultimately¾prove. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury in fact’” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Ibid. Second, the plaintiff’s injury must be “fairly traceable to the challenged action of the defendant,” meaning that “there must be a causal connection between the injury and the conduct complained of.” Ibid. “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.” Id. at 561.⁵

According to the Court, standing promotes separation of powers by confining the federal judiciary to its properly limited role of remedying actual injuries inflicted by an adverse defendant, thereby leaving policy decisions to the elected branches.⁶

Unfortunately, the injury, traceability (i.e., causation), and redressability standards are so malleable that they can be easily manipulated depending upon whether a judge wishes to reach the merits⁷¾as even some Justices have candidly recognized.⁸ Relatedly, although the Justices portray standing as a threshold issue of jurisdiction, they often distort the doctrine in light of their substantive legal views.⁹ In general, liberal Justices apply standing principles loosely to allow plaintiffs to vindicate progressive federal laws but strictly to foreclose challenges to such laws, whereas conservatives relax standing to help their preferred plaintiffs (such as private corporations) but rigorously enforce the doctrine to shut out leftist plaintiffs (e.g., those who seek to enforce civil rights and environmental laws).¹⁰ The result is that the Court’s standing cases are inscrutable,¹¹ as the Justices have at times admitted.¹²

The fundamental problem is that, contrary to the Court’s assertions, its standing rules have no discernible basis in Article III’s language or history or in the Constitution’s structure.¹³ As originally understood, Article III authorized parties to litigate a federal law “Case” if they met three conditions. First, a plaintiff had to assert a legal right in a form prescribed by law, which since 1789 has included a variety of ex parte proceedings with no adversarial defendant. Second, a plaintiff’s claim had to arise fortuitously¾that is, he or she had no control over the liability-triggering act or event and no intent to deliberately manufacture a lawsuit. Third, a “Case” had to present a legal question that called for interpretation by an independent federal judge who was an expert in federal law. Article III thereby furthered separation of powers because federal courts would accept jurisdiction over all “Cases” that Congress had validly conferred on them.

The Court faithfully implemented this conception of Article III for more than a century and a half, which produced clear and consistent results.¹⁴ By contrast, the modern switch to the injury-causation-redressability triad has created analytical confusion and has allowed federal courts to abdicate their duty to exercise their jurisdiction, granted by Congress pursuant to Article III, over “all Cases” involving federal statutory and constitutional rights.¹⁵

The foregoing points will be detailed in a three-part analysis. Part I describes the post-New Deal evolution of standing. Part II examines the most recent standing cases. Part III argues that if the Court wishes to clarify standing¾a big if, as the doctrine gives federal judges extraordinary discretion¾it would revive Article III’s original meaning.

I. Modern Standing Doctrine

In the 1920s, the Court created standing as a prudential doctrine of self-governance that allowed federal judges to exercise equitable discretion to manage their caseloads.¹⁶ Of surpassing importance were the consolidated cases of Massachusetts v. Mellon and Frothingham v. Mellon,¹⁷ which involved requests to enjoin enforcement of a federal statute that appropriated funds to states to promote maternal and child health.¹⁸ Plaintiffs argued that this legislation violated the Tenth Amendment and federalism principles by usurping the states’ reserved power over local public health.¹⁹ Initially, the Court held that, although it had original jurisdiction over cases involving a state party, Massachusetts’s claim was not “justiciable” because it had presented “abstract questions of political power,” not legal issues appropriate for judicial resolution.²⁰

The Court distinguished precedent allowing states to sue when their proprietary rights, physical boundaries, or “quasi-sovereign rights” had been actually invaded.²¹ The Court further concluded that Massachusetts could not sue as parens patriae on behalf of its citizens because they were also United States citizens and thus should have directed their complaints to Congress and the Executive Branch.²² Finally, the Court ruled that the individual taxpayer had no right to file a Tenth Amendment or Due Process complaint because his financial interest in this statute was “minute and indeterminable” and “shared with millions,” so that he was really bringing a generalized political grievance.²³ The Court based its holdings on its equitable discretion in injunction proceedings.²⁴

The practical need for docket control became acute during the New Deal (1933–37), as federal legislation exploded.²⁵ Justice Felix Frankfurter, who joined the Court in 1939, wrote several separate opinions over the next decade maintaining that standing was not merely a matter of equitable judicial discretion, but rather a constitutional command.²⁶ He baldly asserted that Article III’s drafters used the words “Cases” and “Controversies” interchangeably to restrict standing to plaintiffs who could show a personal “legal injury” to an interest recognized at common law, in a federal statute, or by the Constitution.²⁷ Finally, Frankfurter declared that his vision of standing implemented the Constitution’s historical separation-of-powers framework, which sharply restrained the federal judiciary as compared to the legislative and executive departments.²⁸ By 1952, he had persuaded his colleagues to accept his idea of Article III standing.²⁹

This approach remained relatively stable until the early years of the Burger Court (1969–86).³⁰ In 1970, Justice William Douglas in a majority opinion announced that Article III required a plaintiff to demonstrate an individualized “injury in fact,” replacing the former focus on an injury at law.³¹ Over the next few years, the Court added the “fairly traceable” and “redressability” requirements.³² The Burger, Rehnquist, and Roberts Courts have continually tweaked these standards in ways that have generated unpredictability.³³ This confusion cuts across all subjects, but is most evident in cases involving Acts of Congress that addressed critical emerging issues like civil rights, the environment, and the transparency of political organizations.³⁴ The major decisions on injury, causation, and redressability reveal these intractable analytical problems.

A. Injury in Fact

Violations of many federal laws often affect millions of people and do not result in personal injury, property damage, or monetary loss¾the traditional, cognizable common law interests. Therefore, to allow some plaintiffs standing (especially under the statutes identified above), the Court has had to stretch the particularized “injury in fact” requirement. For example, Congress prohibited racial discrimination in housing to protect people of color, but the Court granted standing to sue over violations of this law to white apartment dwellers by recognizing a novel injury to their right to live in a multi-racial community.³⁵ Similar creativity is especially pronounced in opinions dealing with environmental legislation.

1. Environmental Standing

Congress typically seeks to ensure maximum compliance by supplementing Environmental Protection Agency (“EPA”) enforcement with a provision granting any interested persons the right to sue over alleged violations.³⁶ The Justices have always insisted that Article III confines standing to those who can show an “injury in fact.” However, in Sierra Club v. Morton,³⁷ the Court found that this standard could be satisfied by alleging that the violation of an environmental statute offends a particular plaintiff’s “aesthetic,” “recreational,” or emotional sensibilities.³⁸ Alas, such purported injuries are not matters of fact that can be ascertained objectively (unlike physical harm or financial loss), but rather depend on one’s feelings³⁹¾contrary to the Court’s oft-repeated rhetoric that an injury must be “actual or imminent, not conjectural or hypothetical.”⁴⁰

Sierra Club thereby turned the supposedly bedrock constitutional requirement of particularized, concrete injury into a pleading game. Perhaps the most egregious illustration is United States v. Students Challenging Regulatory Agency Procedures (SCRAP),⁴¹ in which the Court granted standing to Washington, D.C., law students who challenged a federal agency’s decision to increase railroad freight rates.⁴² The majority concluded that this order would reduce the use of recycled material (owing to higher shipping expenses), which would necessitate further exploitation of natural resources to make replacement items and thereby damage the environment¾degradation that might occur in Washington and might interfere with the students’ enjoyment of nature.⁴³

Sierra Club and SCRAP rewarded clever drafting of complaints. An environmental group merely had to ask a member who lived in a location that might experience negative environmental impacts to serve as a named plaintiff, then join the complaint after that plaintiff’s standing had been recognized and take over the litigation.⁴⁴

In such cases, even imaginary “injuries” have sometimes sufficed. For instance, in Friends of the Earth v. Laidlaw Environmental Services,⁴⁵ the Court allowed standing to plaintiffs who claimed aesthetic and recreational injuries based on their pretrial affidavits expressing “concerns” about perceived health and safety risks stemming from a corporation’s emission of a tiny amount of a pollutant into a nearby river, despite the district court’s factual finding that this discharge had not caused any such harms.⁴⁶ In dissent, Justice Antonin Scalia and other conservatives made the common-sense observation that false perceptions about harm do not demonstrate a concrete injury.⁴⁷ A few years after Laidlaw, however, in Summers v. Earth Island Institute,⁴⁸ Justice Scalia wrote for a fractured Court to reject as inadequate the injuries proffered by an environmental group seeking to enjoin the U.S. Forest Service from exempting the sale of fire-damaged timber on certain federal lands from ordinary statutory review procedures.⁴⁹

The Court has often applied the injury standard in ways that frustrate Congress’s express purposes, thereby undermining standing’s separation-of-powers rationale.⁵⁰ For example, the Endangered Species Act (“ESA”) seeks to protect such species in many ways, such as by ensuring that federal construction projects do not threaten them.⁵¹ Nonetheless, in Lujan v. Defenders of Wildlife,⁵² a divided Court denied standing to plaintiffs¾including scientists who had professional interests at stake because they had studied certain endangered animals in Egypt and Sri Lanka at a planned federal construction site and intended to return there¾on the ground that their complaint did not state that they had bought an airline ticket for the purpose of viewing such species.⁵³ But in Bennett v. Spear,⁵⁴ the Court granted standing to ranchers and irrigation districts that had challenged the federal government’s attempt to protect certain endangered fish.⁵⁵

Lujan and Bennett reflect the Court’s elevation of its byzantine standing framework over Congress’s clear intent.⁵⁶ Moreover, Lujan cannot be reconciled with many other cases in which the Court generously licensed Article III standing, either at Congress’s behest or on its own initiative.

2. Standing to Enforce Widely Shared Rights

Lujan is an outlier, as the Court usually strains to honor Congress’s efforts to bestow broad standing to enforce its laws. Consider Federal Election Commission v. Akins,⁵⁷ in which plaintiffs invoked a federal statutory provision that authorized “any party aggrieved” to sue the Federal Election Commission (“FEC”) for allegedly violating the requirement of public access to certain information from political organizations.⁵⁸ The Court ruled that plaintiffs had shown an injury to their right to obtain such information, even though all voters had experienced the same harm.⁵⁹ Justice Scalia, along with two colleagues, dissented because this holding conflicted with longstanding precedent prohibiting standing to bring such generalized grievances, which should be made to the political branches.⁶⁰

The decisions he cited, however, did not involve an individual’s attempts to enforce a statute. Rather, they concerned plaintiffs who claimed, in their capacity as citizens or taxpayers, that the federal government had acted unconstitutionally¾and whose alleged “injuries” the Court deemed insufficiently particularized because they were shared by the populace at large.⁶¹ Moreover, those cases did not uniformly ban such standing, and they all featured numerous concurring and dissenting opinions.⁶²

For example, in Flast v. Cohen,⁶³ a fragmented Warren Court allowed taxpayers to sue over the government’s allocation of tax revenue to religious organizations, which violated the Establishment Clause prohibition on such expenditures.⁶⁴ In 1974, however, a divided Court refused to extend Flast to two other constitutional challenges. First, in United States v. Richardson,⁶⁵ it denied taxpayers standing to complain that a federal law authorizing secret CIA expenditures ran afoul of the constitutional mandate that Congress provide a “Statement and Account” of all public expenses.⁶⁶ Second, in Schlesinger v. Reservists Committee to Stop the War,⁶⁷ the Court rejected the standing of citizens who complained that a congressman’s service in the military reserves—part of the executive branch—transgressed a constitutional clause forbidding such dual office-holding.⁶⁸

In Valley Forge Christian College v. Americans United for Separation of Church and State,⁶⁹ a bare majority of Justices then limited Flast itself to challenges under the Establishment Clause only when Congress had acted under the Article I Spending Clause, not its Article IV power to dispose of federal property.⁷⁰ As the dissenters emphasized, however, this distinction was legally irrelevant because the Establishment Clause violation¾federal financial support of religion¾was the same regardless of the source of Congress’s power.⁷¹ Thus, they assailed the Court for spouting standing rhetoric, rather than applying the law of Flast, to obscure its hostility to the substantive constitutional rights at issue.⁷² Finally, the Roberts Court confined Flast to its facts without technically overruling it.⁷³

Overall, in taxpayer and citizen standing cases, the Court has split badly. The Justices’ opinions appear to be driven more by their political and ideological leanings than by anything in Article III’s text or history. Recently, however, Justice Clarence Thomas has broken with his conservative brethren by questioning whether Article III always requires a showing of “injury in fact.”

3. Justice Thomas’s Originalist Version of Standing

In Spokeo v. Robins,⁷⁴ the Court concluded that Article III obliged plaintiffs to demonstrate not only that a company had violated a federal consumer-protection statute that gave private parties a right to sue over such breaches, but also that this violation had caused them to suffer a concrete and individualized “injury in fact.”⁷⁵ In a concurrence, Justice Thomas argued that English and American courts at the time of the Framing recognized standing for those who simply claimed that their own private rights had been infringed, but that a plaintiff who relied upon public rights (i.e., those held by all citizens)¾such as Robins¾also had to demonstrate that the legal violation had resulted in a concrete, personal injury.⁷⁶

Justice Thomas recently elaborated upon this opinion in Transunion LLC v. Ramirez.⁷⁷ There, Justice Brett Kavanaugh and four other conservatives reiterated the shibboleth that Article III “Cases” and “Controversies,” in eighteenth-century Anglo-American legal parlance, limited federal courts to resolving disputes in which a plaintiff incurred a particularized “injury in fact” inflicted by an adverse defendant.⁷⁸ The majority acknowledged that Congress had provided for a private cause of action against credit-reporting agencies that disobeyed the statute by failing to ensure the accuracy of the information of consumers (they had erroneously been deemed poor, terrorists, or drug traffickers).⁷⁹ The Court held, however, that most of the thousands of plaintiffs could not prove that this conceded statutory violation also resulted in a true, personalized “injury in fact” (i.e., a harm akin to a traditional common law injury such as physical, monetary, or reputational damage).⁸⁰

Justice Thomas (joined by the three liberal Justices) dissented on the ground that Article III, as originally understood, authorized federal jurisdiction over any “Case” in which a plaintiff claimed that his own private rights, whether founded in common law or statute, had been infringed.⁸¹ But a party who merely alleged violation of a legal duty owed to the public had to demonstrate both such an injury at law (injuria) and actual damages⁸²¾although Justice Thomas admitted that there were some historical exceptions.⁸³ He criticized the majority for ignoring this history in favor of the “‘injury in fact’ (as opposed to injury at law) concept of standing” that the Court had created in 1970¾in a case that did not even involve standing under Article III, but rather a federal statute.⁸⁴ Justice Thomas conceded that after 1970, the Court had repeatedly denied standing where a federal statute established a public right and authorized citizens to sue over its violation, unless they also proved that the breach had personally and concretely injured them.⁸⁵ However, the Court had never insisted on such a showing of “injury in fact” when a statute created private rights because that would invade Congress’s Article I legislative power.⁸⁶ Consequently, Justice Thomas maintained that all the plaintiffs had properly alleged a violation of their private statutory rights, which sufficed to confer Article III standing.⁸⁷

Unlike the Court’s other professed originalists, Justice Thomas has studied history to challenge the notion that Article III standing has always required a concrete, particularized “injury in fact.” As I will show, he is half right.⁸⁸ As Justice Thomas said, eighteenth-century plaintiffs never had to demonstrate such an injury when they credibly alleged infringement of their own private rights, whether derived from a statute, the common law, or the Constitution. However, his other conclusion¾that private parties who claim a violation of their public rights must prove an individualized “injury in fact”¾does not fit with the historical evidence.⁸⁹

4. Summary: The Capricious Application of “Injury in Fact”

As the foregoing cases illustrate, “injury in fact” is a conceptual quagmire. Accordingly, whether a party has experienced a sufficiently concrete and particularized injury often depends on a judge’s whims. Sometimes the Court recognizes injuries that seem abstract (as in SCRAP and Laidlaw) or generalized (as in Akins and Flast), but at other times the Court rejects injuries that seem quite real and individualized (as in Lujan and Summers).⁹⁰ Many cases are contradictory, such as Flast and Valley Forge.⁹¹ Similarly impossible to reconcile are the Court’s holdings that the federal government’s refusal to provide information as required by federal law is an “injury in fact” in some cases (like Akins) but not others (like Richardson).⁹²

Finally, even if such an injury is found, it must be “fairly traceable” to (i.e., caused by) the defendant and “likely to be redressed” judicially. Those determinations are also arbitrary.

B. Causation

The Burger Court introduced these new standing elements in Linda R. S. v. Richard D.,⁹³ which treated causation and redressability as a single inquiry about whether a plaintiff sought a judgment that would actually affect the parties’ rights and responsibilities.⁹⁴ Linda, the mother of an out-of-wedlock child, requested (1) a declaratory judgment that Texas’s practice of pursuing child support obligations only from fathers of “legitimate” children violated the Equal Protection Clause, and (2) prosecution of the father for failure to pay such support.⁹⁵ Characterizing Linda’s injury as monetary, the Court denied her standing because the remedy she sought would cause the father to be imprisoned, not to pay child support.⁹⁶ The dissenters argued that Linda had standing because she had suffered a personal “injury in fact” (as opposed to suing solely as a representative of the public) and had set forth a serious constitutional claim, whereas the probability that she would ultimately obtain relief was a separate matter.⁹⁷ Moreover, if the Court had defined the injury as discrimination against unwed mothers, then prosecution would have redressed that harm. Indeed, in later cases the Court employed exactly that logic, yet without reversing Linda R. S.⁹⁸

In Allen v. Wright,⁹⁹ the Court clarified that traceability was distinct from redressability,¹⁰⁰ yet that segmentation did little to improve analysis. In Allen, the majority held that the IRS’s failure to fulfill its statutory obligation to deny tax-exempt status to private schools that racially discriminated had inflicted an “injury in fact” on black families that could be remedied if the IRS changed its approach, but that this injury was not “fairly traceable” to the IRS’s illegal act.¹⁰¹ As the dissent stressed, however, these tax exemptions provided financial support that helped to cause continuing discrimination.¹⁰²

The Burger Court never explained why it incorporated “traceability” into the standing framework. Adding this element beclouded analysis, as causation is a notoriously protean construct developed in torts and other legal areas.¹⁰³ Determining whether an action “caused” a result is a discretionary, policy-laden judgment about how far back in a chain of events one is willing to go.¹⁰⁴ Thus, “traceability” can easily be deployed to achieve preferred political and ideological results, as when conservative Justices in Allen invoked causation to thwart civil rights plaintiffs.¹⁰⁵ Sometimes the Burger Court applied causation loosely to reach the merits and sustain laws it favored, such as a federal statute that limited private companies’ liability for nuclear power plant accidents that had been challenged by environmental activists.¹⁰⁶

The Rehnquist and Roberts Courts have continued to issue confusing and conflicting opinions about “traceability.”¹⁰⁷ No amount of case-by-case tinkering with causation can clarify this idea, which is inherently malleable.

C. Redressability

Ascertaining whether a judicial decision is “likely” to redress an injury presents two difficulties. First, courts consider an appropriate remedy at the end of a trial if liability has been found, so such relief should not be a threshold issue of jurisdiction.¹⁰⁸ Second, the “likelihood” standard depends upon a subjective calculation of probabilities. Judges enjoy broad remedial discretion, so their initial judgment about possible redressability typically reflects their degree of sympathy towards a plaintiff’s substantive legal claim. Not surprisingly, conservative Justices tend to find that an injury is likely to be redressed when alleged by a preferred party like a private corporation, but unlikely to be remedied when proffered by disfavored plaintiffs (e.g., those bringing civil rights¹⁰⁹ or environmental claims¹¹⁰), whereas liberal Justices usually do the opposite.¹¹¹

D. The Arbitrariness of All Three Standing Elements: Massachusetts v. EPA

The foregoing analysis reveals that most standing cases feature disagreements about one of the three factors¾injury, traceability, or redressability. But some decisions implicate all of these elements, with the Justices reaching radically different conclusions. The most striking illustration is Massachusetts v. EPA.¹¹²

This case added a chapter to the Court’s long struggle to adapt standing doctrine¾developed in the context of human beings who had claimed personal injuries resulting from an infringement of their rights¾to states.¹¹³ Recall that in Massachusetts v. Mellon, the Court held that states, on behalf of their citizens, could not sue the federal government for allegedly exceeding its constitutional powers (there, under the Spending Clause) and violating the Tenth Amendment because such issues should be resolved through the political process.¹¹⁴ However, the Court recognized that states themselves could invoke federal court jurisdiction if they credibly alleged infringement of their proprietary rights, boundaries, or “quasi-sovereign” interests.¹¹⁵ The Court was trying to establish a strong presumption against states suing the United States. However, Mellon, combined with the modern “injury in fact” requirement, have encouraged pleading creativity in which states disguise their political beefs with federal programs as individualized common law injuries.

In Massachusetts v. EPA, five liberal Justices initially declared that states deserved “special solicitude” in standing determinations,¹¹⁶ despite the contrary Mellon presumption. This bare majority then ruled that Massachusetts had standing under the Clean Air Act (“CAA”) to contest the EPA’s denial of a petition for a rulemaking to regulate greenhouse gas emissions from new motor vehicles.¹¹⁷ Critically, the Court concluded that Massachusetts had demonstrated its own “injury in fact” (as contrasted with harms that may have befallen its citizens) by asserting that the EPA’s inaction would contribute to global warming, which would increase sea levels, which by the end of the century might erode some of the state’s coastal land.¹¹⁸ The Court then found that this injury was “fairly traceable” to the EPA’s inaction and likely to be redressed by ordering it to promulgate the requested regulation.¹¹⁹

Chief Justice John Roberts, writing on behalf of his three conservative colleagues, dissented.¹²⁰ At the outset, he contended that Massachusetts’s alleged injury (land loss) had not actually occurred and was hardly “imminent” (as it might not happen at all, and if so not for a century).¹²¹ He then argued that (1) causation was absent because emissions from new American motor vehicles would have only a minute impact on global warming, and many other factors might cause future erosion on the Massachusetts coast, and (2) the proposed regulation would not be likely to remedy the state’s purported injury.¹²²

Massachusetts v. EPA illustrates that standing opinions depend heavily on the Justices’ politics and ideology, which in turn leads them to characterize the facts to fit those views. The liberal Justices, who favor strict environmental laws, (1) stretched the concept of “actual or imminent” factual injury to include the exceedingly distant possibility of property loss (property rights being a bulwark of traditional common law); (2) strung together a very long chain of causal connections; and (3) accepted plaintiffs’ speculative assertion that issuing the requested regulation would redress their alleged injury. The conservative Justices, who tend to be environmental skeptics, disagreed as to all three elements of standing.

The conceptual and practical problems with standing have persisted. The Court’s recent Term provides many illustrations.

II. Standing Cases in 2023

The Court’s latest standing decisions have further muddled analysis. Most notably, in Biden v. Nebraska,¹²³ Missouri and several other states challenged the Department of Education’s plan to forgive $430 billion in student-loan debt at the end of the COVID-19 pandemic.¹²⁴ The Department relied upon a 2003 federal statute designed to help such debtors in a “national emergency” like the 9/11 terrorist attacks.¹²⁵ In his majority opinion, Chief Justice Roberts began by noting that the State of Missouri had created, supervised, and controlled MOHELA, a nonprofit corporation, to serve the public function of assisting its citizens with student loans.¹²⁶ The Court concluded that Missouri had standing because the Department’s debt-forgiveness program would cause the state to suffer a concrete “injury in fact”¾MOHELA’s loss of $44 million in fees¾that could be judicially remedied.¹²⁷ On the merits, the Court held that the 2003 statute did not authorize the Department to take such a drastic and costly action.¹²⁸

Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, dissented on the ground that Missouri had no “personal stake” in the Department’s loan forgiveness plan because it had incurred no particularized injury, but rather had simply brought a generalized grievance based on its disagreement with the federal loan forgiveness policy.¹²⁹ Justice Kagan argued that MOHELA, which was legally and financially independent of Missouri and thus would absorb all monetary losses, might have been a proper plaintiff but had deliberately chosen not to sue.¹³⁰ The dissenters accused the majority of disregarding established standing principles in their unseemly eagerness to invalidate the loan forgiveness program.¹³¹

Biden v. Nebraska rendered ineffective, from a real-world and political standpoint, a related case in which the Court had denied certain borrowers standing to challenge the loan forgiveness program.¹³² One need not be a Legal Realist to surmise that politics and ideology influenced the Justices’ approach to standing in Biden v. Nebraska. On the one hand, all six conservative Justices have embraced the theory that federal statutes should not be interpreted as delegating “major questions” to executive agency discretion, especially massive financial outlays not specifically authorized by Congress.¹³³ The conservatives could apply this theory in Biden v. Nebraska only if they first determined that some plaintiff had standing to raise it. Therefore, they unsurprisingly accepted Missouri’s claim that it had been “injured in fact” because MOHELA would lose money (a classic common law injury) as a result of the Department’s loan forgiveness plan. On the other hand, the liberals presumably supported this Biden Administration initiative. Hence, they characterized Missouri as a third party that had suffered no injury to its own interests, as contrasted with the financial harm incurred by MOHELA. Standing standards are flexible enough to justify either the majority or dissenting opinions, which boiled down to the technical legal relationship between a state and one of its agencies.

Another fragmented standing decision, United States v. Texas,¹³⁴ arose out of the Biden Department of Homeland Security’s announcement that it would not comply with federal immigration statutes requiring the arrest and removal of certain noncitizens (e.g., those who have been convicted of crimes).¹³⁵ All of the Justices agreed with the district court’s finding that this new policy would cause border states like Texas to incur significant costs (in law enforcement, incarceration, and social services), which qualified as an “injury in fact” for standing purposes.¹³⁶

Nonetheless, Justice Kavanaugh, joined by Chief Justice Roberts and the three liberals, ruled that this injury was not “legally and judicially cognizable,” for two reasons.¹³⁷ First, federal courts traditionally had not entertained such suits, and indeed had denied standing where (as here) the plaintiff was not subject to an actual or threatened arrest or prosecution.¹³⁸ Second, Article II gave the Executive Branch broad discretion over criminal law enforcement, and a decision to refrain from arresting or prosecuting did not infringe upon the individual liberty and property interests that courts must protect.¹³⁹ Such discretion extended to the immigration context, where enforcement choices reflected policy judgments such as resource constraints, changing opinions about public welfare and safety needs, and foreign-affairs considerations.¹⁴⁰

Justice Neil Gorsuch, joined by Justices Thomas and Amy Coney Barrett, concurred in the judgment.¹⁴¹ Initially, he rejected the majority’s conclusion that Texas’s injury was not legally cognizable because it involved a discretionary decision not to prosecute, especially since the Court in Massachusetts v. EPA had granted standing to challenge the EPA’s similar choice not to regulate.¹⁴² Instead, Justice Gorsuch argued that this injury was not redressable because Congress had specifically prohibited lower federal courts (albeit not the Supreme Court) from enjoining the operation of the immigration statutes at issue.¹⁴³ Justice Barrett separately concurred, agreeing with Justice Gorsuch about redressability, but adding that the majority had erroneously held that Texas lacked a judicially cognizable injury by superimposing onto the Article III standing analysis a separate substantive opinion about Article II executive authority.¹⁴⁴

In dissent, Justice Samuel Alito maintained that Texas plainly had standing because it (1) had suffered an “injury in fact” (monetary losses) (2) directly caused by the Executive Branch’s violation of federal law (3) that could be remedied under either the applicable immigration statute (which expressly empowered the Supreme Court to enjoin violations) or the Administrative Procedure Act, which authorizes federal courts to set aside agency actions contrary to law.¹⁴⁵ In his view, the majority had ignored settled standing law to embrace an extreme view of plenary Article II “executive [p]ower” as including the authority to willfully flout a statute that explicitly limited the Executive Branch’s discretion, which in turn invaded Congress’s plenary power over immigration law.¹⁴⁶

United States v. Texas cannot be explained in purely partisan terms, as only Justices Sotomayor, Kagan, and Jackson would have been politically inclined to support the Biden Administration.¹⁴⁷ Nonetheless, these liberals found ideological common ground with five of the conservatives, who subscribe to the idea¾originated in the Reagan era¾that Article II creates a “unitary executive” with extraordinary discretion, particularly in criminal law and foreign affairs (including immigration).¹⁴⁸ This substantive legal theory best explains the majority and concurring opinions,¹⁴⁹ because they make little sense under the Court’s established Article III standing principles. Especially mystifying is Justice Kavanaugh’s treatment of the injury requirement, since Texas proved it had incurred the paradigmatic injury in Anglo-American law (money damages), and the Court had often held that such financial harm to a state was legally cognizable¾as the concurring and dissenting Justices showed.¹⁵⁰ Likewise, the Court could have redressed this injury, for reasons Justice Alito set forth.¹⁵¹ Because all of the Justices except Alito did not apply the injury, causation, and redressability requirements in a straightforward manner, they must have been using standing verbiage to mask some other purpose¾either to reinforce the “unitary executive” theory or to avoid reaching a controversial political issue.

Even where the Justices agree as to standing, their conclusions are often curious, as two cases illustrate. First, in 303 Creative v. Elenis,¹⁵² Lorie Smith wished to expand her business to include website designs exclusively for heterosexual couples, based on her religious belief that marriage is the union of a man and a woman.¹⁵³ The Court briefly affirmed the Court of Appeals for the Tenth Circuit’s grant of standing because Smith had alleged a “credible threat” that, if she moved forward, the state would enforce its law that prohibited public accommodations from discriminating based on sexual orientation.¹⁵⁴ The Court then enjoined Colorado from enforcing this law because it would violate Smith’s First Amendment rights by compelling her to create expressive designs celebrating same-sex marriage, which she did not endorse.¹⁵⁵ The three liberal Justices dissented from this substantive holding, but did not mention standing.¹⁵⁶

This cursory treatment of standing is odd. Smith certainly had not suffered any actual injury, so the dispositive issue was whether she had proved that such harm was “imminent.” It is debatable whether Smith met this requirement with bare allegations that she “planned” to design wedding websites at some future time and that, if she did so, she would not serve same-sex couples.¹⁵⁷ Accordingly, the Court easily could have denied standing, as it had done in cases like Lujan, on the ground that Smith’s asserted injury was not “concrete,” but rather “conjectural or hypothetical.”¹⁵⁸ However, doing so would have prevented the Justices from reaching the merits of an important constitutional issue, which they were apparently keen to adjudicate.

Second, Haaland v. Brackeen¹⁵⁹ involved the federal Indian Child Welfare Act (“ICWA”), which directs states, in custody proceedings concerning a Native American child, to give preference to (1) members of the child’s extended family, (2) other members of the child’s Tribe, or (3) other Indian families, with the child’s Tribe free to pass a resolution altering this preference order¾even if the state determined that a non-Native American placement would be in the child’s best interest.¹⁶⁰ The Court denied standing to various parties who claimed that the ICWA violated the Equal Protection Clause.¹⁶¹

One group of plaintiffs consisted of three non-Indian couples who could not adopt Native American children. The Court held that they had suffered an “injury in fact,” but could not show that their requested injunction and declaratory judgment against the named federal parties would remedy this injury because the ICWA was administered by state officials, who were not defendants.¹⁶² This distinction, however, rests on the dubious assumptions that state executive officers and judges will likely defy a Supreme Court holding that the ICWA is unconstitutional and that the federal government will fail in its duty to supervise states to ensure they are complying with that law.

The Court then rejected Texas’s standing to claim that the ICWA forced it to break its promise to its citizens that its child placement decisions would not racially discriminate as not amounting to a concrete and particularized injury.¹⁶³ Furthermore, Texas’s allegation that implementing the ICWA’s placement provisions increased its costs was not “fairly traceable” to those provisions because the state would incur the same expenses in all custody proceedings.¹⁶⁴

If the Court had wanted to reach the Equal Protection issue, however, it could have granted Texas standing. Indeed, its conclusion that the federal government’s compelling a state to racially discriminate is not an “injury in fact” is surprising, given the Court’s consistent recognition that such discrimination inflicts serious harm on victims.¹⁶⁵ Similarly, forcing a state in custody proceedings to add consideration of federal legal standards to their ordinary laws will logically cause it to incur greater expenditures (and even a marginal loss of money counts for standing purposes).

Finally, the Court did confer standing on the non-Indian couples and Texas to challenge the ICWA as (1) exceeding Congress’s powers under Article I’s Indian Commerce Clause, and (2) unconstitutionally “commandeering” states to administer federal laws in an area of traditional state concern, but upheld the statute’s validity as an exercise of Congress’s plenary authority.¹⁶⁶ Thus, the Court cleverly deployed standing so that it could uphold Congress’s power to enact the ICWA, yet avoid deciding whether that statute violated the Equal Protection Clause.

In sum, the Court’s most recent standing cases continue its pattern of applying the injury, causation, and redressability standards in cryptic ways. More generally, the Court’s constant tinkering with the doctrine over the past half century has done little to improve analytical precision or predictability. Nor can it, as the problem is foundational: Standing law is built on the sand of judicial fiat, not the rock of Article III’s text and history and the Constitution’s structure. Resurrecting the original and long understood meaning of Article III would greatly clarify standing.

III. The Original Understanding of Article III and “Standing”

I have challenged the conventional wisdom about standing in a series of articles beginning thirty years ago¹⁶⁷ based on exhaustive research into Article III’s original linguistic meaning, the intent of its drafters, and the understanding of its ratifiers and early implementers. My main insights have been independently confirmed and refined by James Pfander in a thorough historical analysis.¹⁶⁸ I will summarize our main conclusions, without reproducing our hundreds of supporting primary sources.

A. My Critical Distinction Between “Cases” and “Controversies”

Article III begins by conferring “the judicial power,” which since 1787 has been defined as rendering a judgment after “expounding” the law¾interpreting it and applying it to the facts.¹⁶⁹ This grant of “judicial power” presupposes that federal judges will have sufficient time to find the operative facts, ascertain the governing legal principles, and issue a sound judgment, typically accompanied by a reasoned opinion.¹⁷⁰ Such “judicial power” is then extended to various “Cases” and “Controversies.”¹⁷¹

Article III does not mention standing¾much less “injury in fact,” traceability, or redressability¾or provide that the “judicial power” can be exercised only in the context of an adversarial dispute. Such concepts also escaped the attention of everyone during the Convention and Ratification debates and the Court for the next century and a half.¹⁷² The modern Court’s basic mistake has been to assert that Article III, as historically understood, used the words “Cases” and “Controversies” synonymously to establish a requirement of standing (and other justiciability doctrines like ripeness and mootness) that restrict federal courts to adjudicating only concrete disputes between opposed parties.¹⁷³

In fact, however, the Framers consciously shifted from “Cases” to “Controversies” because those two words had different meanings, as becomes evident upon reading seventeenth and eighteenth century English legal dictionaries, abridgements, treatises, and judicial opinions.¹⁷⁴ On the one hand, a “controversy” was a dispute¾a definition that has lasted to this day.¹⁷⁵ On the other hand, in the eighteenth century, a “Case” referred to a recognized judicial form of action in which a party requested the vindication of a legal right, regardless of whether there was an adversarial dispute.¹⁷⁶ “Case” derives from the Latin “casus,” meaning “chance.”¹⁷⁷ Hence, a “Case” requires that the legal claim arose fortuitously¾meaning that plaintiffs (1) had no control over the action or event that generated the claim, and (2) did not manufacture a lawsuit.¹⁷⁸ For example, if a legislature creates a new form of action authorizing suits by persons who are adversely affected by violation of a law, plaintiffs must establish that their rights under that law have been abridged involuntarily as a result of some occurrence beyond their control, not by exposing themselves to an arguable legal violation simply to contrive litigation.¹⁷⁹

Article III’s structure reinforces this linguistic distinction between “Cases” and “Controversies.” That Article enumerates three kinds of “Cases” defined by subject matter: (1) the federal Constitution, statutes, and treaties; (2) admiralty and maritime; and (3) the law of nations applicable whenever foreign ministers are affected.¹⁸⁰ Article III then uses a different word, “Controversies,” to denominate six disputes concerning certain parties (e.g., the United States, states or their citizens, and foreign nations or their subjects), regardless of the substantive law at issue.¹⁸¹

The Constitution’s drafters, ratifiers, and early implementers interpreted this distinction primarily as signifying the federal courts’ main function in each jurisdictional category.¹⁸² As for “Controversies,” federal courts’ principal role would be to resolve the parties’ dispute, and the judges’ tenure and salary protections would guarantee the independence that their state counterparts typically lacked.¹⁸³ Any interpretation of legal questions would be of secondary importance, as evidenced by the fact that state law (as definitively determined by state courts) would usually supply the rule of decision.¹⁸⁴

In “Cases,” however, a dispute did not have to exist (although one may have been present).¹⁸⁵ Instead, a “Case” arose if “a party assert[ed] his rights in the form prescribed by law,” in the words of Chief Justice John Marshall¹⁸⁶ (borrowing from Blackstone).¹⁸⁷ One such form of action was private: a plaintiff’s claim that a common law or statutory right had been violated by a defendant.¹⁸⁸ Other causes of action were “public.”¹⁸⁹ For example, “relator” suits enabled citizens to act as private attorneys general to vindicate certain laws that safeguarded the public interest, while “informers” could sue on behalf of the government to help enforce criminal and regulatory laws (e.g., suspected evasion of customs duties) and obtain a share of any money damages recovered, even if the violation had not caused the plaintiff any personal injury.¹⁹⁰ Similarly, prerogative writs (mandamus, prohibition, quo warranto, and certiorari) permitted English courts to investigate government actions alleged to exceed its legitimate power, regardless of an adversarial dispute.¹⁹¹ Likewise, many other “Cases” featured uncontested claims¾for instance, bankruptcy, naturalization, consent decrees, and default judgments.¹⁹²

The takeaway is that many “Cases” did not involve a dispute between adversaries, but rather focused on legal exposition. The natural inference is that Article III’s Framers anticipated that the federal courts’ main role in federal question, admiralty, and foreign minister “Cases” (which were obviously of crucial national importance) would be to interpret and apply the law.¹⁹³

Like Sherlock Holmes’s dog that didn’t bark, the Constitutional Convention, the Ratification debates, and federal government (including court) proceedings for well over a century contain no hint that Article III “Cases” required a dispute in which a defendant had caused a plaintiff-adversary to incur an “injury in fact.” On the contrary, since 1789, Congress, with the approval of the President and the Court, has continuously conferred federal jurisdiction over non-adversarial actions in areas like relator and informer actions, bankruptcy, naturalization, consent decrees, default petitions, and criminal pleas.¹⁹⁴ No one has ever suggested that plaintiffs in such “Cases” lacked standing.

Moreover, every major standing decision has involved only Article III “Cases” arising under federal law, not any “Controversies.”¹⁹⁵ Recognizing this fact further belies the notion that these two words are synonyms and that the party-dispute approach to “Controversies” should be mindlessly transferred to the distinct category of “Cases.”

Similarly, the Court has asserted, with no historical support, that standing furthers separation of powers by appropriately limiting the federal judiciary to preserve the democratic power of the two elected branches.¹⁹⁶ Yet Article III does not merely restrict federal courts, but affirmatively grants them “judicial power” to decide “all Cases” arising under federal law.¹⁹⁷ Therefore, it violates separation of powers when federal judges decline to exercise jurisdiction that Congress has constitutionally given them¾a principle that the Marshall Court recognized and that its successors have repeated,¹⁹⁸ but not in standing cases.¹⁹⁹

B. Pfander’s “Litigable Interest” Thesis

Recently, Professor James Pfander’s independent historical research has confirmed three of my major points. First, Article III’s language shifted from “Cases” to “Controversies” to convey important differences in meaning that were well understood in England and America.²⁰⁰ Second, “Controversies” were adversarial disputes.²⁰¹ Third, “Cases” involved a plaintiff’s claim of a legal right in a form prescribed by law¾a “litigable interest” that need not be contested by an opposing defendant.²⁰² In his most original contribution, Professor Pfander showed that such “noncontentious jurisdiction” originated with Roman law, continued in the civil law codes of Continental Europe, and was incorporated in England alongside its common law system.²⁰³

Professor Pfander concluded that Article III, by extending “judicial power” to “Cases,” continued the tradition of authorizing plaintiffs with a “litigable interest” to sue, even if they had not experienced an individualized “injury in fact” caused by a defendant.²⁰⁴ He also reaffirmed, with voluminous supporting documentation, my insight that early federal practice and precedent reinforced that Article III “Cases” included such “noncontentious jurisdiction.”²⁰⁵ The First Congress routinely empowered federal courts to consider petitioners’ federal law rights ex parte, and the Court never so much as hinted that such proceedings presented a constitutional problem.²⁰⁶

Overall, the original meaning, intent, and understanding of Article III was that parties could pursue a federal court “Case” if they satisfied three factors. First, plaintiffs had to assert a claim of right in a form prescribed by law, which could¾but need not¾involve a dispute with an adverse defendant.²⁰⁷ Second, plaintiffs had to aver that their claim arose fortuitously.²⁰⁸ Third, a federal question “Case” had to raise a legal issue that needed exposition by an independent Article III court with expertise in federal law.²⁰⁹

IV. A Truly Originalist Approach to Article III Standing

Of course, the Court will be loath to abandon the standing doctrine it has developed over the past seventy years. The foregoing analysis does not necessarily require a wholesale repudiation, however. Most pertinently, the modern law of standing, which confines federal courts to resolving actual clashes between adversaries, can be easily applied to all six categories of Article III “Controversies” (e.g., diversity jurisdiction), which are party-defined disputes.²¹⁰ Moreover, current standing doctrine might even be sensibly applied to those “Cases” in which plaintiffs either (1) assert their personal common law rights, which usually involve a defendant who caused an accident, breached a contract, or invaded property rights,²¹¹ or (2) seek to vindicate their own constitutional rights (as contrasted with a busybody attempting to litigate someone else’s rights).²¹² Finally, stripping the injury, causation, and redressability factors of their technical jargon, their real purpose is to screen out plaintiffs who make claims that strike judges as not worthy of their time. But those standards do a poor job of achieving that goal, whereas the fortuity element of “Cases” would do so directly and effectively.

The Justices who are either self-styled “originalists” (Thomas, Gorsuch, Kavanaugh, and Barrett) or at least weigh history heavily (like Roberts and Alito) should be most open to modifying Article III doctrine in light of the historical evidence. In Spokeo and Transunion, Justice Thomas got this ball rolling by demonstrating that Article III, as originally understood, did not always require an “injury in fact”¾a phrase the Court had minted in 1970 to replace its previous focus on injury at law.²¹³ He correctly pointed out that such legally cognizable injuries have always included those in which a plaintiff simply claimed that his own private rights, whether based on common law or a statute, had been violated.²¹⁴ However, Justice Thomas went awry in asserting that private petitioners who relied upon public law rights also had to prove that the violation of such rights had caused them to incur a concrete personal injury (typically monetary damages).²¹⁵ He did, however, honestly acknowledge historical exceptions to such an additional showing of factual injury, such as laws enacted by the First Congress and the Court’s opinion in McCulloch v. Maryland.²¹⁶

But those “exceptions” are actually the rule. Indeed, it seems implausible that the Framers and ratifiers who dominated the First Congress (including Madison), with approval from President Washington (who also presided over the Constitutional Convention) and Chief Justice Marshall (who had participated in the Virginia ratifying convention) either broke their oaths to uphold the Constitution or did not grasp that it prohibited public actions by private parties.

Perhaps most notably, consistent with established Anglo-American practice, Congress from its inception has authorized informer and relator suits, in which petitioners have never had to allege a personal “injury in fact” caused by an adverse defendant.²¹⁷ Justice Scalia and his conservative successors Kavanaugh and Gorsuch have suggested that the Court should invalidate such statutes because they conflict with Article III standing requirements.²¹⁸ But those standards reflect a “living Constitution” reinterpretation of Article III, whereas a faithful originalist would recognize that such “Cases” surely include informer and relator actions¾as well as bankruptcy, naturalization, default judgments, consent decrees, criminal pleas, prerogative writs, and various equity actions.²¹⁹

Beyond those ancient subjects of noncontentious jurisdiction, however, there may be some constitutional constraints on Congress. Special difficulties arise where Congress determines that its novel statutes (and the public interest they protect) can best be vindicated by supplementing executive branch enforcement with suits by private parties.²²⁰ Such “citizen suit” provisions are especially common in environmental legislation.²²¹ Article III, however, does not compel federal courts to entertain all such complaints filed by any person, for two reasons.

First, a “Case” arises only when the violation of such a statute has infringed the plaintiff’s legal rights by chance through an act or event beyond his or her control¾not when people, acting individually or at the behest of an organization, voluntarily expose themselves to an alleged statutory violation in order to manufacture a lawsuit.²²² Article III’s fortuity requirement thereby provides a clear mechanism for weeding out a large percentage of potential lawsuits brought under such regulatory statutes. By contrast, the Court’s doctrine does not filter out contrived litigation because it treats self-inflicted harms as “injuries in fact.”²²³ Such manufactured complaints are really a type of feigned claim, which the Court has long (and correctly) prohibited.²²⁴

Second, the proper exercise of Article III “judicial power” requires adequate time to ascertain the relevant facts and law, and then determine how that law (which is often expressed in flexible standards rather than black-letter rules) should be applied to reach a sound final judgment.²²⁵ Consequently, Congress cannot expand federal dockets to such an extent that they would overwhelm judges’ ability to make deliberative decisions, as would occur if thousands or millions of Americans invoked “citizen suit” provisions²²⁶ (although class actions and multidistrict litigation could ameliorate this problem).²²⁷ The Court has not candidly acknowledged that it created and developed modern standing doctrine mainly as a docket-control device,²²⁸ probably because doing so would fly in the face of its longstanding precedent that the Constitution authorizes Congress alone to determine the federal courts’ jurisdiction¾and that they cannot decline to exercise the jurisdiction conferred.²²⁹ Although Congress admittedly has broad discretion, it is subject to countervailing constitutional limits¾most pertinently here, the need to exercise “judicial power” deliberatively.

Application of my proposed framework would change either the results or reasoning (or both) in many standing cases.²³⁰ I will separately consider standing to bring complaints under statutes and the Constitution, because the latter raise certain unique issues.

A. Standing to Sue Over Statutory Violations

As explained above, the Court should have granted standing in Spokeo v. Robins and Transunion LLC v. Ramirez because plaintiffs’ legal claims (1) were in a form prescribed by Congress, which had given victims of breaches of its consumer-protection and credit-reporting laws a right to sue; (2) arose fortuitously (plaintiffs had nothing to do with the companies’ statutory violations and were not faking claims); and (3) presented questions of federal statutory interpretation that were suitable for resolution by federal courts.²³¹

Environmental cases are a mixed bag. Sometimes the Court has denied standing when it should have been granted¾most notably, in Lujan v. Defenders of Wildlife, where plaintiffs made their claim in a form prescribed by law, as the Endangered Species Act authorized suits by anyone affected by a federal agency’s failure to follow procedures for construction projects to ensure that they did not imperil such species.²³² That legal claim arose by chance, at least as to the two scientists who studied endangered animals in Egypt and Sri Lanka that were threatened by a proposed federal government building project.²³³ Finally, this case presented novel legal issues that called for federal judicial interpretation, such as whether the ESA applied to the United States’ projects outside of its borders.²³⁴

While sometimes rejecting standing when it should have been conferred, the Court has often mistakenly permitted standing. That is especially true in environmental law decisions where my critical second factor¾“Case” as a chance occurrence¾was absent. The clearest example is SCRAP, which involved a claim fabricated by law students who simply disagreed with an agency’s increase in railroad freight rates.²³⁵ Laidlaw is a closer case, because the company did technically violate federal water pollution laws by emitting a chemical in a river (albeit a harmless amount), which accidentally affected people who happened to live next to or used the river.²³⁶ Turning to my first factor, however, it is unclear whether Congress authorized private plaintiffs (as opposed to the EPA) to sue over de minimis statutory breaches that posed no real-world dangers.²³⁷ Expansively interpreting the statute would potentially explode federal courts’ dockets, and would thereby compromise the deliberative exercise of “judicial power,” by granting standing to anyone who wrongly perceived that small amounts of air or water pollution (which occurs frequently) posed a danger to them.²³⁸

In an especially dubious decision, the Court in Massachusetts v. EPA granted the state standing to sue over the EPA’s denial of a request for a rulemaking to regulate greenhouse gas emissions from new motor vehicles.²³⁹ For openers, a basic administrative law principle is that, although judicial review is available to anyone adversely affected by an agency’s action, it is presumptively barred when an agency exercises discretion not to do something.²⁴⁰ Therefore, Congress likely did not want anyone to be able to sue to force the EPA to regulate, especially given that Congress itself can oversee executive branch agencies, direct them to engage in rulemaking, or simply enact legislation. Moreover, even if that were not true, states would be last on the list of preferred plaintiffs, as the Court has long disfavored state suits against the United States on the ground that they are usually better handled through the political rather than judicial process.²⁴¹ Thus, it is not clear whether Massachusetts was a proper plaintiff to file this cause of action.

Turning to my second factor, Massachusetts and other blue states might assert that they incurred a happenstance deprivation of their rights under the Clean Air Act in the sense that they had no control over the EPA’s regulatory rulemaking process. Nonetheless, these states were enlisted by environmental organizations to contrive this litigation to protest the Bush II Administration’s perceived lack of urgency in addressing global warming.²⁴² The “injury in fact” rubric did not prevent this manufactured litigation because Massachusetts concocted a common law harm (property damage) based on its speculative allegation that it might lose a few feet of coastline a century hence.²⁴³ Finally, federal courts should not have interfered because the suit involved an issue of policy to be worked out through the democratic process, not a question of the legal meaning of the federal statute.

The foregoing analysis would also have changed the outcome in Biden v. Nebraska.²⁴⁴ The Court granted Missouri standing to contest the Department of Education’s $430 million student loan forgiveness plan because this program resulted in a remediable “injury in fact”¾the state’s loss of $44 million in fees.²⁴⁵ Under my suggested approach, Missouri submitted a claim in a standard legal form (an injunction) and presented a vital question of federal law¾whether Congress had authorized the agency to make such a huge monetary decision. As for my second factor, Missouri might maintain that the Department’s alleged legal violation infringed its rights involuntarily, as the state played no part in this decision. Nonetheless, as Justice Kagan argued, Missouri and the other five states contrived this litigation for political purposes:²⁴⁶

Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan-cancellation plan makes for terrible, inequitable, wasteful policy. And so too for [the other five state plaintiffs].²⁴⁷

Sadly for Justice Kagan, current standing doctrine is not based on reality but rather on pleading technicalities, and Missouri’s claim of monetary damages (even a very small amount of its overall budget) is a classic common law “injury in fact.” Again, a “fortuity” inquiry does the work that the Court’s injury analysis cannot.

My proposed framework would also have altered the result in the other recent state standing decision, United States v. Texas.²⁴⁸ This case is unique because the Biden Administration announced that it would refuse to enforce Acts of Congress requiring the arrest and removal of specified noncitizens (e.g., convicted criminals)¾not merely exercise executive discretion to decline to make such arrests or removals in individual situations based on extenuating circumstances (e.g., if the noncitizen had terminal cancer).²⁴⁹ That fact also distinguishes United States v. Texas from Massachusetts v. EPA,²⁵⁰ in which an executive agency used its discretion to refrain from making a specific rule, not to disregard its governing statutes.²⁵¹

The majority rejected Texas’s standing only because of the elasticity of the injury, causation, and redressability requirements (indeed, the Justices could not agree on which element had not been met).²⁵² The result is difficult to fathom, as Texas’s plight¾being forced to deal with many noncitizens who legally should not have been roaming free, with attendant increased costs in law enforcement, prisons, and social services²⁵³¾was far more serious than the relatively piddling asserted state “injuries” alleged in Biden v. Nebraska or Massachusetts v. EPA.

My Article III analysis would be far more straightforward. First, as to the form of action, the federal immigration statutes at issue expressly authorized the Court to enjoin violations of its provisions at the behest of victims of such lawlessness, like Texas.²⁵⁴ Second, Texas’s legally protected interests had been invaded fortuitously, as the state did not deliberately expose itself to the federal government’s unlawful conduct to manufacture a lawsuit. Third, only the Court had the independence necessary to vindicate this important federal legislation.

In sum, the Court’s cases on standing to sue to enforce statutes are hard to justify, from either a legal or practical standpoint. My proposed three-pronged approach, which is actually rooted in Article III, would provide long-overdue clarity.

B. Standing to Sue Over Constitutional Violations

Although my analysis can be applied to both statutory and constitutional claims, the latter implicate unique concerns. “We the People” established the Constitution as our supreme and fundamental law, which both empowers and restrains all governments¾with elected officials especially prone to disregard those limits for immediate political gain.²⁵⁵ The only exceptions would be the constitutional clauses that grant Congress and the President virtually unlimited discretion, such as those addressing war- and treaty-making, presidential vetoes, impeachment, and appointment of executive and judicial officers.²⁵⁶ All other constitutional provisions must be amenable to a judicial challenge by at least one person, or else they become suggestions rather than law.²⁵⁷ In light of this principle, my third factor assumes special significance: Federal courts alone have the independence necessary to impartially and faithfully expound the Constitution. I will separately consider two types of judicially enforceable constitutional provisions: individual and collective.

1. Standing to Sue Over Individual Constitutional Rights

Plaintiffs who credibly allege a fortuitous violation of their individual constitutional rights, typically found in the Bill of Rights or the Fourteenth Amendment, should have standing. For example, in both Linda R. S. v. Richard D. and Allen v. Wright, the Court erred by denying standing to plaintiffs who made serious claims, in a recognized form of action, that their Equal Protection rights had been violated through government actions which the plaintiffs could not control and did not seek out.²⁵⁸

Similarly, in the recent case of Haaland v. Brackeen, the Court should have granted standing to the white couples who complained that the Indian Child Welfare Act violated the Equal Protection Clause.²⁵⁹ First, they sought to vindicate their constitutional rights in a form prescribed by law, as they appropriately invoked federal question jurisdiction. Second, their claim was not contrived but rather came about by happenstance, as the federal government’s enforcement of the ICWA thwarted their effort to adopt the Indian children they had been fostering, which would have been successful under state law. Third, although Justice Kavanaugh concurred in the denial of standing, he correctly noted that the ICWA requirement that states discriminate based on race “raises significant questions under bedrock equal protection principles and the Court’s precedents,”²⁶⁰ and those thorny issues should have been resolved. However, the Court did properly deny standing to Texas, as a state has no Equal Protection rights¾and hence cannot make a litigable claim that they were violated.²⁶¹

The Court’s other recent case involving standing to secure individual constitutional rights, 303 Creative v. Elenis, correctly allowed plaintiff Smith to proceed, but with very little explanation. Applying my suggested framework, Smith submitted her claim in a familiar legal form¾a request for an injunction to prevent a violation of her constitutional rights. That claim arose fortuitously, as Colorado sought to force her to express endorsement for same-sex marriage in her wedding website design business, contrary to her sincere religious beliefs. Third, an important legal question required exposition by the Court¾whether First Amendment freedom of expression allowed businesses serving the public an exemption from anti-discrimination laws.

In sum, the Court’s analysis of standing to vindicate individual constitutional rights might have been defensible if it had focused exclusively on ascertaining, through the “particularized injury in fact” inquiry, whether a plaintiff has personally experienced a violation of such rights. The plaintiffs in Linda R. S., Allen, and Haaland all satisfied that test. However, they could not litigate their serious Equal Protection claims because the Court needlessly added consideration of the traceability and redressability factors. By contrast, my proposed approach would have granted these plaintiffs standing.

2. Standing to Sue Over Collective Constitutional Rights

The Court’s requirement of an individualized injury makes little sense in the context of constitutional clauses that guarantee rights held by the People collectively.²⁶² Such provisions retain legal viability only if any citizen, on behalf of the People, has standing to enforce them. Thus, in two cases, the Court incorrectly denied citizens standing to litigate clear violations of constitutional clauses that protect the public from conflicts of interest by forbidding (1) dual office-holding in the legislative and executive branches,²⁶³ and (2) appointment to the Court of Congressmen who had voted to raise the pay of Justices.²⁶⁴ Similarly, a taxpayer should have had standing to challenge Congress’s violation of the Article I clause obliging Congress to provide a “Statement and Account” of all public expenses, which reflects the democratic principle that all Americans have a right to know where their tax contributions are going.²⁶⁵

To hold that the aforementioned provisions cannot be enforced unless their violation inflicts a unique factual injury on some individual is to require the impossible and thereby effectively delete those provisions from the Constitution.²⁶⁶ The Court’s legitimate fear that allowing such broad citizen standing would overwhelm federal dockets could be allayed if it adopted a rule that, in cases involving collective constitutional rights, only one well-qualified plaintiff will be permitted to represent the public.

The Establishment Clause is trickier. Historically, this Clause served as a structural safeguard of federalism: Congress could not establish religion, but states could.²⁶⁷ A devout originalist, then, would apply the same approach above and grant standing to any citizen who brought a credible claim that the federal government was violating the Establishment Clause. The modern Court, however, has reinterpreted the Clause as conferring an individual right to be free of religious establishments.²⁶⁸ Accordingly, the Court has limited standing to those whose rights have personally been abridged—for example, only a non-Christian would be injured by New Testament readings and related prayers in a public school that he or she attended.²⁶⁹

But the core Establishment Clause no-no¾financial support of religion¾adversely affects all Americans equally, because even its immediate beneficiaries might find that government funding comes with strings attached that can compromise a church’s beliefs and teachings. This collective constitutional right should be enforceable by any taxpayer who is competent to represent the public interest. Therefore, the Court was correct in Flast²⁷⁰ to permit taxpayers to sue over the federal government’s financial support of religion, and wrong to eviscerate Flast.²⁷¹

My analysis of standing to enforce collective constitutional provisions reflects the fundamental postulate that the Constitution¾unlike legislation¾is our fundamental law, not mere exhortations. My proposed handling of this set of cases is consistent with my overall approach to Article III. First, the plaintiff is asserting rights in a form prescribed by law: Both Article III and federal statutes confer jurisdiction over “all Cases arising under the Constitution,”²⁷² with no exception for its provisions that secure collective rights. Second, such claims arise fortuitously insofar as the plaintiffs had no control over the government’s actions alleged to violate the Constitution.²⁷³ Third, such “Cases” invariably feature novel and important legal issues that require interpretation and application by independent Article III courts that are well-versed in constitutional law.

Conclusion

The Court’s most recent standing decisions continue its pattern of applying the vague injury, traceability, and redressability standards in arbitrary ways. Genuinely originalist Justices would abandon this common law of standing and instead incorporate the original meaning of an Article III “Case”: a legal claim that arose fortuitously, was submitted in a recognized form of action, and would benefit from legal exposition by an independent federal court. Moreover, the liberal, non-originalist Justices would achieve more favorable results through application of this legally principled approach to Article III instead of the current impressionistic standing doctrine.

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The Court Continues to Confuse Standing: The Pitfalls of Faux Article III “Originalism”

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