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S, Standing to Sue

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Standing to Sue

is one of the doctrines of *justiciability derived from the “case or controversy” requirement of *Article III (see cases and controversies). In its simplest form, standing identifies who may bring claims that (p. 957) some government action violates the Constitution. Other justiciability doctrines identify what claims may be brought (the *political questions doctrine) and when they may be brought (doctrines of *mootness and *ripeness).

Stated generally, people have standing to challenge a government action only if they are injured by the action. Ordinarily the injury is apparent, as when a plaintiff claims that police conducted an illegal search, and in most constitutional cases no serious question of standing arises. Occasionally the government action inflicts no tangible harm on any particular individual, as when Congress fails to disclose the budget of the Central Intelligence Agency in arguable violation of the payments and accounts clause of Article I, section 9 (United States v. *Richardson, 1974). In these cases plaintiffs sue in their capacity as citizens or taxpayers, claiming not that they have suffered any individualized injury but that the government’s alleged violation of the Constitution inflicts an injury on every citizen or taxpayer.


The doctrine of standing’s origins are unclear. The *common-law system of *writs appears to have supplied some writ sufficient to challenge any government action. Assuming no bar of *sovereign immunity, ordinary *tort claims could be brought if individuals suffered obvious injury. Writs of *mandamus or *quo warranto could challenge actions as beyond the authority of the government even if they did not harm anyone in the usual sense. As government expanded, practical and conceptual difficulties arose in using traditional common-law writs. Under the writ system, people could sue where their rights were invaded. The concept of an invasion of rights was clear enough in cases such as those involving police misconduct, which could result in physical injuries. With the rise of activist government in the twentieth century, the concept of rights became more diffuse. Governments enacted statutes conferring benefits on a group, but some members of the group might allege that the statutes were not being implemented properly. Were these plaintiffs injured? Only if their rights were invaded. But, it seemed, their rights were invaded only if the statute was not being implemented properly. Thus, the concept of injury, and the associated concept of standing, seemed to collapse into the merits of the claim the plaintiffs made.

Activist government also generated political opposition. Having lost in legislatures, opponents of activist government sought to transfer their battles to the courts by bringing lawsuits alleging that the activist statutes were beyond the power of the government to enact. The plaintiffs claimed standing as taxpayers, arguing that the statutes unlawfully wasted their money. These lawsuits were efforts to use the federal courts to limit the power of Congress and were associated with substantive theories of constitutional limitation associated with the ideas of *dual federalism and substantive *due process that prevailed during the “Lochner era” from the 1890s to 1937 (see *Lochner v. New York, 1905).

As the Supreme Court confronted challenges to the activist state, it began to develop the law of standing beyond its common-law origins. The Court substantially eliminated the possibility of taxpayer standing, at least in cases claiming only that Congress’s action intruded on domains reserved to the states (*Frothingham v. Mellon, 1923). It also began to pry the concept of standing apart from the merits by developing the idea that people should have standing if Congress wanted to let them challenge government action, even if they were not injured by a denial of their common-law or statutory rights.

By the 1960s the doctrine of standing placed few restrictions on plaintiffs. Two cases in this period attempted to define the doctrine. In *Flast v. Cohen (1968) the Court allowed taxpayer standing to challenge expenditures alleged to violate the *First Amendment’s ban on an establishment of *religion, such as arguably occurs in certain forms of public support of parochial *education. According to Flast, taxpayer standing should be allowed where the Constitution places specific limitations on the power of Congress to spend money. In Association of Data Processing Services v. Camp (1970) the Court allowed standing to anyone arguably within the zone of interests that Congress sought to protect. These decisions appeared to authorize more substantial judicial supervision of government action than earlier versions of the standing doctrine. Just as restrictive notions of standing were associated with efforts to limit the power of courts in the Lochner era, expansive notions were associated with the more activist era of the 1960s.


When the Supreme Court began to limit its own activism, it used the doctrine of standing as one of its vehicles (see judicial activism). It did not, however, alter the rules regarding standing in cases challenging actions by administrative agencies, and it continued to affirm that Congress had power to confer standing. But in constitutional cases, the Court identified two aspects of the standing doctrine: “injury-in-fact” and a showing of actual government causation of that injury. According to the Court, the traditional requirement of injury-infact, derived from ideas of common-law injuries, was always required. Doctrines of causation and remedies were associated with the injury-in-fact requirement: the challenged government action (p. 958) must have caused the injury, and the court must be able to order a remedy that will eliminate the injury. Simon v. Eastern Kentucky Welfare Rights Organization (1976) demonstrated the force of the causation requirement. It involved a challenge to an Internal Revenue Service decision that made it easier for hospitals to retain their tax-exempt status even if they restricted services to poor people. Describing the injury as the denial of hospital services to the poor, the Court said that this injury resulted from the hospitals’ decisions, not the allegedly unlawful change in the IRS position, and that there was no assurance that, were the courts to invalidate the IRS position, indigents would receive increased hospital services.

Prudential Limitations

In addition, the Court identified “prudential” limitations on standing. The Court has not clarified the precise dimensions of these prudential limitations, but it has said that they are designed to ensure that the courts will not intervene in cases where it would be better to let the political process address the claimed constitutional violation or where judicial intervention might provoke a congressional response adverse to the courts. The Court has said that, though Congress may eliminate the prudential restrictions on standing, Article III itself requires injury-in-fact; Congress therefore cannot authorize the courts to decide cases unless there is an injury-in-fact.


Both the prudential and the injury-in-fact requirements have been widely criticized. The prudential requirements are so ill-defined, critics claim, that they essentially allow the Court to use the doctrine of standing as a surrogate for a decision on the merits. If the Court believes that it will be criticized for ducking a hard constitutional question, it will find no prudential standing barrier; if it believes that it will be more severely criticized for resolving a constitutional question than for ducking it, it can invoke the prudential dimensions of standing to avoid deciding the merits. Most defenders of this aspect of the doctrine acknowledge that the critics have accurately described the Court’s practices but argue that it is valuable for the Court to have available flexible doctrines of this sort so that it can more smoothly play its role in the nation’s overall system of constitutional politics.

The injury-in-fact requirement has been criticized for reviving the problem that standing and the merits tend to collapse into each other. Allen v. Wright (1984) illustrates the problem. African-American taxpayers whose children attended public schools in districts under judicial orders to desegregate challenged the Internal Revenue Service’s system of investigating claims that private schools discriminated on the basis of race. Federal law clearly prohibited the granting of tax-exempt status to racially discriminatory private schools, and the plaintiffs claimed that they were injured by the IRS practice in two ways: first, the government’s failure to investigate claims of private racial discrimination aggressively itself sent a message supporting discrimination and, second, the government’s inadequate system of investigation meant that discriminatory schools could continue to operate in ways that interfered with the ongoing process of desegregation (see race and racism).

The Court held that the plaintiffs did not have standing, contending that they had not shown that the IRS practices actually made it more difficult for their school districts to desegregate. The second alleged injury-in-fact, the Court said, was not caused by the IRS practice and could not be remedied by judicial intervention. The first injury, the stigma caused by the government’s inadequate system, was not, according to the Court, the kind of injury that the Constitution addressed.

Both aspects of the analysis have been questioned. The causation analysis seems to deny that prices affect purchases—that is, the seemingly undeniable facts that a more adequate system of investigation would increase the cost of private education at schools denied tax-exempt status because they were racially discriminatory, that the higher cost would mean that fewer white parents could afford to send their children to these schools, and that having fewer white children in private schools would make it easier to desegregate the public schools. The Court’s denial that the government’s failure to regard the interests of African-Americans seriously is an injury-in-fact seems to be a determination about the scope of the Constitution, that is, a decision on the merits rather than a decision about standing. Allen v. Wright is perhaps best understood as an expression of the Court’s discomfort with the remedy the plaintiffs proposed, which would have required more intrusive judicial supervision of the daily operation of the IRS than the Court believed appropriate. Thus the Court may in fact have been discussing the remedies or causation prongs in the guise of interpreting injury-in-fact. Such confusion is not unusual in recent standing cases.

Other Issues

Although the Court has said that Congress may create new rights the invasion of which will confer standing, it is unclear how broadly Congress may act. Under the Freedom of Information Act of 1967, anyone may demand government documents, without giving any reason, and may sue to challenge a withholding of the documents. Here, Congress created a right, held by everyone, of access to documents, and anyone has standing to sue if that right is invaded. Reconciling this result with a restrictive interpretation of the injury-in-fact (p. 959) requirement is difficult. To push this situation to its logical extreme, could Congress enact a statute creating a right, held by every citizen, to live in a society whose government complies with the Constitution, and could Congress then authorize everyone to sue to enforce this statutory right?

The Court has said that the constitutional dimensions of standing are related to the *separation of powers. Allowing the courts to act without requiring some form of standing, on this view, would substantially alter the balance of power between the political branches and the courts. Congressional action conferring standing can be understood, according to this view, as a statement by the political branches that they invite judicial determination of the constitutionality of their action. Confrontation between the courts and the political branches would not occur, although an alteration of their power relations would; that alteration might itself violate separation of powers even if Congress wanted the alteration to occur.

The doctrine of standing is important as part of the theory of *judicial review. Analyzing standing has provided the Court with opportunities to periodically revisit and redefine its conception of the role of judicial review in the constitutional system. As a practical matter, the situations in which no one has standing to challenge government action are few, though often important.

Henry P. Monaghan, “Constitutional Adjudication: The Who and When,” Yale Law Journal 82 (1973): 1363–1397. Gene R. Nichol, “Injury and the Disintegration of Article III,” California Law Review 74 (1986): 1915–1950. Kenneth E. Scott, “Standing in the Supreme Court: A Functional Analysis,” Harvard Law Review 86 (1973): 645–692. Mark V. Tushnet, “The New Law of Standing: A Plea for Abandonment,” Cornell Law Review 62 (1977): 663–700.

Mark V. Tushnet