A Polemic Against the Standing Requirement in Constitutional Cases

• Author: Jeremy Patrick
• Position: Lecturer, University of Southern Queensland School of Law
• Pages: 603-635

A POLEMIC AGAINST THE STANDING REQUIREMENT

IN CONSTITUTIONAL CASES

JEREMY PATRICK*

[W]here the will of the legislature, declared in its statutes, stands in

opposition to that of the people, declared in the Constitution, the judges

ought to be governed by the latter rather than the former. They ought to

regulate their decisions by the fundamental laws, rather than by those

which are not fundamental.1

—Alexander Hamilton

I. INTRODUCTION

The notion of “standing” is a dangerous absurdity. It is an absurdity

because it completely fails to achieve its stated purpose, has no grounding

in the text or structure of the Constitution, and is the most incoherent and

manipulable “rule” the Supreme Court has ever contrived. It is dangerous

because it keeps individuals from having legitimate grievances heard in a

court of law, insulates egregiously unconstitutional laws from review, and

renders large swathes of the Constitution into mere nugatory aspirations.

Standing doctrine will be familiar to anyone who has practiced in a

federal court or completed a legal education in the United States in the past

forty years. According to the Supreme Court, the “irreducible minimum”

of standing is composed of the plaintiff showing an actual or threatened

injury that can be traced to the defendant, and that is redressable by the

court.2 The doctrine is said to be explicitly required by the Constitution to

keep the Judicial Branch within its proper boundaries.3 It supposedly has

the fortuitous side-effect that cases are presented in adversarial, fact-rich

Copyright © 2013, Jeremy Patrick.

* Lecturer, University of Southern Queensland School of Law. The author welcomes

feedback at jeremy.patrick@usq.edu.au.

1 THE FEDERALIST NO. 78, at 452 (Alexander Hamilton) (Bantam Classic ed., 1982).

2 Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc.,

454 U.S. 464, 472 (1982). The Court, in its infinite wisdom, has also articulated a series of

“prudential considerations” for the standing inquiry, which it applies when it wants to and

does not apply when it does not want to. See id. at 492 n.4.

3 See Raines v. Byrd, 521 U.S. 811, 820 (1997) (“[T]his overriding and time-honored

concern about keeping the Judiciary’s power within its proper constitutional sphere . . . .”).

See also Antonin Scalia, The Doctrine of Standing as an Essential Element of the

Separation of Powers, 17 SUFFOLK U. L. REV. 881, 881–82 (1983).

604 CAPITAL UNIVERSITY LAW REVIEW [41:603

contexts4 without the “floodgate s” of litigation being opened up tha t would

overwhelm the system.5 The Court’s recitations of the standing formula

and its purported justifications have become boilerplate elements of

published opinions. It is as if, through sheer force of repetition, the Court

hopes its audience will be hypnotized by the mantra of standing and forget

that the doctrine was fashioned relatively recently and out of whole cloth.6

In short, the Court would have us believe that the way things are now is the

way they have to be, but this is not true.

This Article is one in a long line. Over forty years ago, Louis Jaffe

wrote, “There is already an enormous and adequate literature on the law of

standing.”7 The vast majority of this literature has been critical of the

Supreme Court’s creation and application of the doctrine,8 and

commentators have suggested a wide va riety of reform.9 Thi s Article goes

4 Valley Forge Christian Coll., 454 U.S. at 472.

5 Contra Kenneth E. Scott, Standing in the Supreme Court—A Functional Analysis, 86

HARV. L. REV. 645, 673–74 (1973) (characterizing high litigation costs as the barrier

holding back the floodgates).

6 See Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and

Article III, 91 MICH. L. REV. 163, 185–86 (1992) (“One might well ask: What was the

source of the injury-in-fact test? Did the Sup reme Court just make it up? The answer is

basically yes.”).

7 Louis L. Jaffe, Standing Again, 84 HARV. L. REV. 633, 633 (1971) (footnote omitted).

8 See, e.g., Laveta Casdorph, Comment, The Constitution and Reconstitution of the

Standing Doctrine, 30 ST. MARY’S L.J. 471, 479 (1999) (“Much of the scholarship

addressing standing criticizes its pedigree as a questionable, judge- made legal fiction—

essentially, a judicial invention without foundation in the text or history of the

Constitution.”).

9 See, e.g., Heather Elliott, The Functions of Standing, 61 STAN. L. REV. 459, 515

(2008) (arguing standing should be replaced with “prudential abstention doctrine”); Richard

Murphy, Abandoning Standing: Trading a Rule of Access for a Rule of Deference, 60

ADMIN. L. REV. 943, 987 (2008) (arguing replacement of standing doctrine with “clear

error” approach to interpretation); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77

N.C. L. REV. 1741, 1776 (1999) (arguing that standing doctrine should be revised to be

simpler, more objective, more consistent, and more deferential to democratically

accountable branches); Eric J. Segall, Standing Between the Court and the Commentators:

A Necessity Rationale for Public Actions, 54 U. PITT. L. REV. 351, 402–03 (1993) (arguing

that standing doctrine should apply only to protect a societal rights); Sunstein, supra note 6,

at 166–67 (arguing that the injury in fact test should be replaced by a cause of action

inquiry); Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62

CORNELL L. REV. 663, 700 (1977) (suggesting that standing should be refused only if

(continued)

2013] A POLEMIC AGAINST STANDING 605

further. It argues not that the standing doctrine should be tinkered with or

liberalized, but instead that, at least when the constitutionality of a statute

or act is in question, the doctrine should be wholly abolished.10 In short,

the standing doctrine does not deserve to be at the front of every published

decision involving federal law, but buried so deep in the graveyard of

discredited and discarded judicial inanities that it can never be dug up

again.

In place of standing, this Article proposes that any individual be

afforded the opportunity to contest the constitutionality of any statute or

government act .11 Article III courts would become open constitutional

courts.12 This proposition may seem breathtakingly radical at first glance.

However, it is only radical to the extent that the idea of an entrenched

written constitution was once thought radical, or that judges should have

the ability to declare legislation void was once unthinkable. The

ratification of the United States Constitution was a seismic shift in the

history of law, an event that was an order of magnitude different than what

had gone before. The rule of law, as incarnated in the Constitution, that

the powers of every member of every branch of government are limited in

crucial ways cannot be served if recourse to that fundamental document

can be made only in the fortuitous event that an individual suffers an

“actual injury.”13

plaintiff could not present case adequately, factual concreteness was lacking, or plaintiffs

more directly affected would be likely to come forward).

10 Accord Christian B. Sundquist, The First Principles of Standing: Privilege, System

Justification, and the Predictable Incoherence of Article III, 1 COLUM. J. RACE & L. 119,

157 (2011) (“The convoluted doctrine that evolved from the Court’s disingenuous

interpretation of ‘case’ or ‘controversy’ must be forsaken completely. Merely modifying

the requirements of standing will do little to guard against privilege and political decision-

making. Instead, the entire language of standing must be removed from the judicial

toolbox.”). Sundquist’s article reaches many of the same conclusions as I do, although we

reach these conclusions through somewhat different argume nts.

11 This proposal is limited to claims based upon the Constitution, which are referred to

generally as “constitutional cases” in this Article. The standing doctrine is used to prohibit

a wide variety of other lawsuits and is especially dominant in administrative law cases

involving environmental law. This Article does not take a position on the suitability of

standing requirements in nonconstitutional cases.

12 This description is borrowed from the title of Patrick Keyzer’s book proposing the

abolition of standing in Australia. See PATRICK KEYZER, OPEN CONSTITUTIONAL COURTS

(2010).

13 See Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,

Inc., 454 U.S. 464, 472 (1982) (requiring an actual injury).