In my last post, I explained why conservatives and liberals may be changing their traditional positions on standing. In this one, I briefly explain my view that “constitutional” standing requirements are both a bad idea and not required by the Constitution. Right from the start, I should emphasize that my argument only applies against claims that the Constitution imposes strict standing requirements on litigants who want to file a lawsuit arguing that some government action is unconstitutional. I don’t deny that Congress has the power to impose standing requirements for litigants who want to file suits under a federal statute; Congress can even enact statutes under which no private individuals have any right to sue at all.
I. Text and Original Meaning.
Let’s start with the text of the Constitution. The provision of the Constitution usually cited as the source of standing requirements is Article III’s grant of federal judicial power, which gives federal courts jurisdiction over “all cases… arising under this Constitution and the laws of the United States.” It’s hard to see how this justifies the modern standing requirement that litigants must have suffered a past or imminent material injury caused by the statute they claim is unconstitutional. Nothing about the word “case” suggests that it is limited only to claims involving narrowly defined injuries. Even if you can’t have a “case” without such an injury, you can certainly have a “controversy” without it. And Article III also gives federal courts jurisdiction over “all controversies to which the United States shall be a party,” controversies between a state and citizens of another state, and controversies between citizens of different states. At the very least, therefore, restrictive standing requirements should not be applied to challenges to the constitutionality of federal laws.
Perhaps “case” and “controversy” were eighteenth century terms of art that required a narrowly defined harm as a prerequisite for standing. But the historical evidence doesn’t support any such claim. To the contrary, standing requirements in the early Republic and the 19th century were extremely loose (see pp. 13-15 here for a helpful summary).
Perhaps “case” and “controversy” do require a litigant to prove that he has suffered some kind of harm that can be redressed by a judicial ruling. But even if so, the harm that all citizens suffer when public resources are expended for unconstitutional purposes should be sufficient. For any given individual, that harm may be small. But the same can be said for extremely small direct monetary losses that are enough to justify standing even under the most restrictive interpretations of modern standing doctrine; for example, the imposition of a $1 fine is universally considered sufficient.
II. Pragmatic Considerations.
The main pragmatic argument for modern standing restrictions is that they are supposedly needed to prevent the courts from being drowned in a flood of frivolous lawsuits. But judges have many other tools for disposing of frivolous cases. For example, they can be swiftly dismissed for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As a practical matter, dismissing a frivolous case under Rule 12(b)(6) is not significantly more difficult and time-consuming than dismissing it for lack of standing. Defendants routinely brief both issues anyway. In extreme cases, attorneys who bring frivolous suits can be sanctioned under Rule 11.
Moreover, if allowing lawsuits for nonmaterial harms will lead to a flood of frivolous litigation, it’s hard to see why we haven’t seen a similar flood as a result of the fact that current standing doctrine allows lawsuits for very small financial harms, such as the loss of even a single dollar. The answer, of course, is that few litigants are willing to pay the cost of filing suits that are doomed to near-certain failure.
The real purpose of “standing” doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on “generalized” grievances that affect a large number of people. But the fact that an unconstitutional law harms many people (even in a diffuse way) makes it all the more urgent that courts be able to strike it down.
A different practical concern is that important constitutional precedents should not be set by plaintiffs who don’t have a stake in the outcome great enough to incentivize them to litigate the issue effectively. But modern standing doctrine does a poor job of sifting out “low-quality” litigants. Many of the most important cases in our constitutional history were brought by organizations whose main motives were moral or ideological. Even if they were able to find clients who met the requirements of standing doctrine, the injuries suffered by those individuals were not the main reason for bringing the case. The civil rights cases litigated by the NAACP are the best-known example. In some instances, such as the important civil rights and property rights case of Buchanan v. Warley, the claimed injury was essentially manufactured for the purpose of bringing the suit. It makes little sense to exclude litigants with strong ideological or moral commitments, but permit those with small financial stakes. The former class are, on average, probably more motivated and capable than the latter. If low-quality litigants are a problem, standing doctrine is a bad solution.
Given the extensive accumulation of precedent, it may be unrealistic or imprudent to simply junk standing doctrine immediately. But courts can certainly move in the direction of gradually loosening its requirements. In recent years, the Supreme Court and many lower courts have already begun to do that, in cases such as Massachusetts v. EPA, and now the Virginia challenge to the health care mandate.