Causation

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The second prong of the Lujan test for Article III standing requires the litigant to demonstrate that the injury-in-fact that he or she has suffered is “fairly traceable” to the challenged actions of the defendant.1 Under Supreme Court jurisprudence, this requirement may not be met when the litigant’s injury results at least in part from the actions of a third party not before the court or, more broadly, when “the line of causation between the illegal conduct and injury [is] too attenuated.” 2

For example, in Simon v. Eastern Kentucky Welfare Rights Org., the Supreme Court found that the plaintiffs lacked standing because they failed to show that the defendants’ actions had caused them harm, rather than the actions of absent third parties.3 In that case, a group of indigent plaintiffs challenged an Internal Revenue Service (IRS) ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status.4 The plaintiffs alleged that the Revenue Ruling made such hospitals less likely to grant free services to indigents.5 However, the Court held that the plaintiffs lacked standing to sue because their injury was the result of independent action of parties not before the Court—i.e., the hospitals.6 In other words, the hospitals’ denial of services to the indigents, even if likely to injure them, was not fairly traceable to the federal government’s issuance of the Revenue Ruling.7 Instead, the Court determined that it was too speculative to conclude that the denial of service was caused by the Revenue Ruling or that the plaintiffs would receive free hospital services if the IRS revoked its rule, as hospitals could establish their own policies with respect to providing services to indigents without regard to the tax implications.8 Thus, the plaintiffs lacked standing because they alleged future injuries that depended at least in part on the actions of third parties not before the court, and they could not show more than mere speculation that those third parties would establish policies that would injure them.9

A further example of how the interplay between the decisions of absent third parties and the litigant’s injury has affected the causation prong of the standing analysis is Allen v. Wright.10 In that case, parents of African-American children who attended public schools alleged that the IRS had caused them injury by allowing racially discriminatory private schools to qualify for federal tax exemptions, preventing the desegregation of their children’s schools.11 The Court found these allegations did not establish sufficient causation for standing purposes.12 Relying on its earlier decision in Simon, the Court determined that it was not clear that racial segregation in the public schools was linked to the IRS policies because private school officials might not change racially discriminatory school policies in response to a withdrawal of tax benefits, and, even if they did, parents of children attending private schools might not transfer their children to public school as a result of such changes.13 Thus, the plaintiffs’ allegations that the IRS policy had caused them injury rested on speculation about the actions of multiple third parties, and such speculation was insufficient to establish a causal connection between the defendant’s actions and the plaintiffs’ alleged injuries for standing purposes.14

As in the case of standing for procedural injuries, discussed above, certain kinds of equal protection injuries may be accepted as sufficient for standing even if the possibility of ultimate relief from that injury remains somewhat speculative. When a litigant challenges a governmental entity’s alleged discriminatory practices on equal protection grounds, arguing that those practices have deprived it of a benefit granted to another favored class of individuals, the litigant may have standing even if it cannot demonstrate that it would have received the benefit in the absence of the government’s conduct—or that a judicial order would result in its receipt of the benefit if it prevailed. Rather, the litigant must simply show that it would secure equal treatment under the law if it obtained judicial relief. Thus, for example, in Adarand Constructors v. Peña, the Court allowed a company’s challenge to subcontractor compensation clauses in federal procurement contracts that allegedly favored small businesses controlled by racial minorities.15 The Court held that, even if the company could not demonstrate that it would be the low bidder on any particular subcontract, it had alleged a sufficient injury from its inability to compete on an equal footing with other companies.16 Similarly, the Court determined that a male plaintiff had standing to challenge Alabama laws that authorized courts to impose alimony obligations on husbands but not wives.17 The Court permitted the challenge even though it was possible that prevailing in the suit would “not ultimately bring [the plaintiff] relief from the judgment [for alimony] outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives.” 18

1: Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks omitted). The Court has stated that plaintiffs challenging a law’s constitutionality may have Article III even if they cannot trace their injuries to the challenged law, so long as their injuries are traceable to the conduct of the defendant. Collins v. Yellen, No. 19-422, slip op. at 17–19 (U.S. June 23, 2021) (determining that shareholders had Article III standing when their economic injuries were traceable to the Federal Housing Finance Agency’s adoption of a new policy, even though the shareholders specifically challenged the constitutionality of the law that created the agency and defined its structure). In FEC v. Ted Cruz for Senate, the Court determined that a U.S. Senator and his campaign committee had standing to challenge the constitutionality of a provision in a federal campaign finance statute. The government argued that the Federal Election Commission’s threatened enforcement of the statutory provision did not cause the litigants’ Article III injuries; rather, the litigants’ injuries stemmed from the agency’s threatened enforcement of an implementing regulation that imposed loan-repayment limitations. Nonetheless, the Court held that the litigants had standing to challenge the statutory provision because “an agency’s regulation cannot operate independently of the statute that authorized it.” No. 21–12, slip op. at 22 (U.S. May 16, 2022) (citation and internal quotation marks omitted). Moreover, the litigants’ injuries were traceable to the agency’s threatened enforcement of the statute and implementing regulations despite the fact that the litigants had “knowingly triggered” the provisions’ application. See id. at 4–5.
2: Allen v. Wright, 468 U.S. 737, 752 (1984).
3: 426 U.S. 26, 42–44 (1976).
4: Id. at 28.
5: Id.
6: Id. at 42.
7: Id. at 41–42.
8: Id. at 42–43 ( “It is purely speculative whether the denials of service . . . fairly can be traced to [federal officials'] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.” ). Although the Court’s decision in Simon signaled that the Court would take a less permissive approach to the standing doctrine than it had in prior years, the Court had reached a similar result a year earlier. See Warth v. Seldin, 422 U.S. 490, 502, 506–07 (1975) (finding that low- and moderate-income residents of Rochester, New York, who sued the adjacent town of Penfield for allegedly excluding them from living in Penfield, lacked standing because the plaintiffs failed to demonstrate that their alleged inability to obtain affordable housing was fairly traceable to the town’s zoning practices instead of other factors, such as the independent decisions of companies not to build housing for lower-income individuals in the town). For an example of a case from this era in which the Court found that a litigant had satisfied the causation requirement because the plaintiff’s injury did not depend on the actions of absent third parties, see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977) (determining that a low-income person had shown a “substantial probability” that judicial relief addressing an allegedly racially discriminatory zoning practices would redress his inability to locate housing near his employer by permitting a specific housing project to move forward because the project’s success did not depend on the actions of third parties not before the court).
9: Simon, 426 U.S. at 42–43. But see Dep’t of Commerce v. New York, No. 18-966, slip op. at 10–11 (U.S. June 27, 2019) (holding that states’ alleged injuries stemming from the prospective loss of federal funds were fairly traceable to the Department of Commerce’s inclusion of a citizenship question on the federal census questionnaire because a depressed census response rate, even if the result of unlawful third-party conduct, would be the “predictable outcome” of government action on third parties).
10: 468 U.S. 737 (1984).
11: Id. at 739–40, 757–59.
12: Id.
13: Id.
14: Id.
15: 515 U.S. 200, 211 (1995).
16: Id. See also Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) ( “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.” ); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) ( “The trial court found [an injury] in the University’s decision not to permit Bakke to compete for all 100 places in the class, simply because of his race. Hence the constitutional requirements of Art. III were met. The question of Bakke’s admission [or nonadmission] is merely one of relief.” ) (internal citation omitted).
17: Orr v. Orr, 440 U.S. 268, 271–73 (1979).
18: Id. See also Heckler v. Mathews, 465 U.S. 728, 737–39 (1984) ( “[W]e have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute’s benefits from both the favored and the excluded class.” ). The Court employed similar reasoning when holding that a general interest newspaper had standing to bring a First Amendment challenge to an allegedly discriminatory Arkansas sales tax exemption for special interest journals. Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227 (1987) (stating that to hold otherwise would “effectively insulate underinclusive statutes from constitutional challenge” ).