United States Constitution

Constitutional Standing, as may be clear from the name, is a requirement of the Constitution. Congress cannot override its limits and could not pass a law allowing federal courts to hear cases that the restrictions of Constitutional Standing prevent them from hearing.

Specifically, this type of standing emanates from the wording in Article III, Section 2 which extends federal judicial power over “cases” and “controversies.” Often, in fact, this part of the Constitution is called the “Case or Controversy Clause.”

This has been understood to prohibit federal courts from issuing what are known as “advisory opinions.” In other words, unless there is some case to rule on, a court could not make an official statement on a theoretical outcome before any case actually came into being. More particularly, this requirement is composed of three distinct elements. For a court ruling, if issued, to not be an advisory opinion, it must adhere to all three.

First, there must be so-called “injury in fact.” This means that the party bringing the action must be suffering some concrete harm. This injury must be actual, not theoretical. Or, at least, it must be imminent. For example, in Lujan v. Defenders of Wildlife (1992), a case was brought by a group of (former) birdwatchers, alleging that a new policy was endangering birds in certain African countries. However, even though the birds themselves may be in danger, the plaintiffs had no standing to bring the suit. Not only were they personally not suffering, but they could not even show how further endangering the birds would be an imminent danger to them, as they had no immediate plans to return to these locations and engage in further birdwatching. Some of the Justices wrote an opinion concurring in the judgment that suggested that the result of the Court would have been different had the birdwatchers only bought a plane ticket to these locations before bringing the lawsuit.

The second element is causation. There must be a causal connection between the alleged injury suffered and the conduct complained of. For example, in Allen v. Wright (1984), a case was brought by parents of African American students in several states. They alleged that Internal Revenue Service (IRS) policies that were supposed to identify discriminating private schools – to prevent them from being able to receive tax deductible donations – were inadequate. These parents asserted that the IRS allowing certain schools to possibly discriminate and receive tax benefits made it easier for segregated schools to still exist, thereby making it more difficult for African American children to attend desegregated schools. However, the Court found this connection to be too attenuated. There was an insufficient causal connection between the alleged injury (the lesser availability of desegregated schools) and the conduct complained of (the IRS policies in question).

Finally, there must also be what is known as redressibility. This means that it must be likely that the alleged injury will be redressed, or remedied, by a favorable court decision. In other words, if the court agrees with the plaintiff’s argument, will that decision actually help him or her? For example, in Massachusetts v. EPA (2007), the Court analyzed standing issues in a case where Massachusetts and several other states sued the Environmental Protection Agency over EPA policies that refused to regulate carbon emissions. The Court found there to be redressibility, and standing in general, here because rising sea levels resulting from increased greenhouse gases (a contention that the EPA did not dispute in their argument) could directly impact coastal Massachusetts. As such, a court ruling could redress Massachusetts’ potential injury.

First, one may not assert the legal rights of another. There is no “third party standing,” as it is called. For example, in Elk Grove Unified School District v. Newdow (2004), a father brought a lawsuit on behalf of his daughter who attended a public school where the pledge of allegiance was recited daily. This amounted to an establishment of religion, asserted the father, and was unconstitutional. However, the majority in Newdow did not rule on this issue. Instead, they held that the father did not have standing to bring this lawsuit on behalf of his daughter. There is a doctrine, known as the “next friend” doctrine, which allows certain people (parents or guardians, for example) to bring lawsuits on behalf of other less-able litigants (children or the mentally handicapped, for example). However, in this particular case, the father did not actually have custody of his daughter; and the Court held that this prevented the next friend doctrine from being applicable. Therefore, the father did not have prudential standing to bring the lawsuit.

The second prudential standing rule says that generalized grievances are best left to the representative branches of government. For example, in United States v. Richardson (1974), the Court rejected a lawsuit challenging certain CIA policies because those bringing the lawsuits attempted to do so simply because they were taxpayers, and asserted that this gave them a right to challenge the government in this fashion. However, the Court rejected this “taxpayer standing,” holding it to be too generalized of a grievance.

Finally, a plaintiff’s complaint should fall within the so-called “zone of interests” protected by whichever law is being invoked; if it does not do so, it lacks prudential standing. For example, in Association of Data Processing Service Organizations, Inc. v. Camp (1970), data processors challenged the government on a new rule concerning banks. There had been a law in place that stated that banks could not engage in activities that were not bank-related. But this new rule, by the Office of the Comptroller of the Currency, allowed banks to engage in data processing. Thus, the association sued – but the lower courts rejected the suit on the grounds that the initial statute in place was not meant to apply to data processing. In other words, a lawsuit by data processors under this bank statute was beyond the zone of interests the statute was designed to protect. However, the Supreme Court reversed, holding that, indeed, the association had standing because the statute could conceptually include any other industry that a bank was encroaching upon.

There is, however, an exception to this rule, known as “capable of repetition, yet evading review.” This means that though a particular case may be moot by the time it reaches a court, if it is representative of other similar cases which would also ‘evade review’ by becoming moot before they can be ruled on, the court should decide the issue on the merits anyway. For example, in Roe v. Wade (1973) (see Abortion), the opponents argued that the Supreme Court should not issue a ruling on the abortion issue. “Roe” had given birth by the time the case rose up to the Court, and conceptually, her individual case was moot. However, the Court understood that abortion cases would, in general, be capable of repetition, yet evading review. Therefore, the Court rejected this argument and decided the case on the merits.

The most noted case on this doctrine is Baker v. Carr (1962). There, the Court was asked to rule on an issue of redistricting and the defendants in that case argued that drawing the lines of voting districts is a political question, not to be decided by the Courts. The majority, however, disagreed and held that the issue was justiciable. However, Justice Frankfurter and Justice Harlan, in their dissent, felt that the Court had misapplied the doctrine: “The Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”