The functions of standing.

• Author: Elliott, Heather

INTRODUCTION I. THE FUNCTIONS OF STANDING A. The Concrete-Adversity Function 1. The doctrine of standing is said to restrict the courts to cases in which they act qua courts 2. It is plausible, but not particularly useful, to use standing to ensure concrete adversity B. The Pro-democracy Function 1. The standing doctrine is used to reject not only cases involving generalized grievances, but also those involving concrete yet widely shared injuries 2. The doctrine does not reliably identify such situations and may even reject the very cases most appropriate for the courts to resolve 3. The Court's approach to these cases may actually undermine democratic values C. The Anticonscription Function 1. Standing doctrine is used to beat back congressional efforts to use the courts against the executive branch 2. The doctrine fails reliably to identify and exclude cases of congressional conscription II. THE PATHOLOGIES OF STANDING III. NARROWING THE FUNCTIONS OF STANDING A. A Return to Prudential Consideration of Factors Giving Rise to a "Judicial Case" Would Better Serve the Concrete-Adversity Function B. Explicit Consideration of the Political Issues Involved in Each Case Would Better Serve the Pro-democracy Function C. The Court Should Address the Anticonscription Problem Under Article II, Not Article III D. An Abstention Doctrine Bests Current Standing Doctrine CONCLUSION INTRODUCTION

The Supreme Court has stated that standing "is built on a single basic idea--the idea of separation of powers." (1) But, of course, there is no single "idea" of separation of powers, and the Court has used standing doctrine to pursue several different such ideas. (2) In this Article, I seek to understand what separation-of-powers functions (3) are served by standing doctrine, what tensions exist within the Court over the meaning of "separation of powers," and how well standing doctrine performs these functions, given the tensions I identify.

The Court seems to mean at least three different things when it uses standing to promote separation of powers. First, and most familiarly, the doctrine helps restrict the cases heard in the federal courts to those that are properly "cases" and "controversies" under Article III. (4) As the Court noted in Flast v. Cohen, Article III limits "the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." (5) To satisfy such criteria is to make the court's involvement as a court proper. (6) The adversity demanded under this view of standing also "sharpens the presentation of issues upon which the court so largely depends for illumination." (7) As I show below, even this seemingly straightforward separation-of-powers purpose--keeping courts to their role qua courts--has generated significant disagreement among the members of the Court.

Second, the Court has said, standing doctrine allows the courts to refuse cases better suited to the political process, thus (along with other justiciability doctrines) permitting Article III to "assure that the federal courts will not intrude into areas committed to the other branches of government." (8) Cases are sorted on a rough democratic theory: if an injury is shared by a large group of people, some cases suggest, such a group can and should take its problem to the legislature or the executive branch, not the courts. (9) Thus, the Court frequently "has refrained from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." (10) Recent cases indicate a struggle within the Court over the propriety of adjudication when injuries are particularized and yet widely shared. (11) More fundamentally, the cases reveal an ongoing debate within the Court over what it means to facilitate democratic politics.

Third, the Court (and particularly Justice Scalia) has suggested that standing acts as a bulwark against congressional overreaching, preventing Congress from conscripting the courts in its battles with the executive branch. (12) On this view, when Congress creates citizen-suit provisions that permit individual citizens to sue to enforce federal law, the federal courts can be forced into the role of "virtually continuing monitors of the wisdom and soundness of Executive action." (13) Such a role "inevitably produce[s] ... an overjudicialization of the processes of self-governance." (14) When standing serves to deny access to some fraction of citizen suitors, it thereby limits Congress's ability to conscript the courts in its battles with the executive. (15) This function, in particular, is the subject of profound disagreement within the Court.

The "single idea ... of separation of powers" thus turns out to be at least three ideas, each of which is contested. In other words, standing doctrine serves at least three masters. (16) How well does it serve these multiple functions?

In this Article, I argue that standing is ill-suited to most of the functions it is asked to serve, and that forcing standing into this variety of roles contributes to the scathing critiques leveled against the doctrine. (17) Even if standing is properly used for some subset of these functions--for example, in assuring the concrete adversity that enables a court qua court to do its job--the doctrine's broader failings do the Court no favors. Ironically, concepts of separation of powers that were originally introduced into the standing context to "make[] possible the gradual clarification of the law" of standing (18) have instead themselves been muddied.

In Part I below, I delineate the various separation-of-powers functions assigned by the Court to the standing doctrine, demonstrate the conflicts within the cases over the meaning of each function, and then assess the success of the doctrine at performing those functions. I conclude that the doctrine has been asked to serve several functions for which it is profoundly ill-suited, and in so doing has helped generate confusion over the proper role of the federal courts in the constitutional structure.

I demonstrate in Part II that these flaws are not innocuous: using standing in these improper ways causes far more trouble than good. Not only does the inconsistency generated by the doctrine expose the Court to heated criticism, this inconsistency also generates serious difficulties for the lower courts, who have increasingly found refuge in an empty formalism. These separation-of-powers functions embody tensions that should be addressed head-on, and the current problems with standing doctrine obscure rather than clarify those tensions.

Finally, in Part III, I suggest that the Court recognize the multiple functions it has assigned to the standing doctrine, acknowledge that the doctrine serves only one of those functions even minimally, abandon the standing doctrine in most of its current applications, and directly face the separation-of-powers issues now clouded by the vagaries of standing doctrine. Instead of using a constitutional doctrine so plainly flawed, it should develop a vibrant abstention doctrine that permits it to pursue separation-of-powers goals without the obfuscation caused by standing doctrine. (19) In so doing, the Court can cut short accusations that its doctrine of standing is merely a devious method to hidden ends, provide more useful guidance to the lower courts, and achieve the separation-of-powers functions it ultimately decides to promote in ways that are more intelligible. (20)

1. THE FUNCTIONS OF STANDING

   The Court has said that standing is "perhaps the most important" of the justiciability doctrines, (21) which also include ripeness, mootness, political question, and abstention. (22) These doctrines "relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." (23) That the Court's power is constrained by such a variety of doctrines reveals the intense attention paid to the limits imposed by the Constitution, both regarding the judicial power and the powers of the federal government more generally. (24)

   The requirements of the doctrine may be stated simply (and have been described as "numbingly familiar" (25)): (1) the plaintiff must have suffered an injury in fact; (2) the plaintiff's injury must be fairly traceable to the actions of the defendant; and (3) the relief requested in the suit must redress the plaintiff's injury. (26) Despite the concision of the three-part test, the Court has recognized that the standing requirement "incorporates concepts concededly not susceptible of precise definition." (27) Indeed, the Allen Court hoped that grounding the doctrine in separation of powers would aid the lower courts:

   The absence of precise definitions ... hardly leaves courts at sea .... [T]he law of Art. III standing is built on a single basic idea--the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application.... [B]oth federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers. (28) Thus the link to separation of powers emerged primarily as an interpretive tool: courts evaluating a tricky standing question would be guided by considerations of separation of powers in answering that question, resulting in more consistent decisions over time. (29)

   Despite the Court's hopes, the doctrine has proven notoriously difficult to apply. As Professor Pierce has demonstrated empirically, lower courts resolving standing questions have produced contradictory results: cases with essentially the same facts come out...