Congressional Control of Standing

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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.

In addition to interpreting Article III as a limit on the categories of litigants who may maintain a lawsuit in federal court, the Supreme Court has also held that the Constitution constrains Congress’s ability to confer standing on private individuals through the enactment of “citizen-suit” provisions that authorize private individuals to enforce federal laws against the government or private parties.1 Congress may elevate certain categories of harm to the status of cognizable Article III injuries, such as economic injury that results from lawful competition2 or social and professional injury resulting from living in a racially segregated community.3 It may not, however, abrogate Article III constraints on federal court jurisdiction by conferring standing on private parties in the absence of a material risk of particularized injury to them from the defendant’s violations of their statutory rights.4

A major case addressing the constitutional limits on the scope of Congress’s authority to create statutory rights for private citizens (or a class of citizens) to sue is Lujan v. Defenders of Wildlife.5 In Lujan, Justice Antonin Scalia, writing for the majority, stated that Article III generally limits Congress’s ability to create standing by allowing a plaintiff to sue for procedural injuries even where the defendant’s violation of the plaintiff’s statutory rights would not cause the plaintiff any other concrete injury.6 Although Congress may relax the Article III standards for immediacy and redressability of the injury in such provisions,7 Congress cannot create standing for redress of generalized grievances about government by providing litigants with an “abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” 8 To allow Congress to do so through enactment of provisions providing private rights of action would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” and make the courts the continuing monitors of Executive action.9

Justice Anthony Kennedy wrote a separate concurrence in Lujan in which he suggested that Congress has broad authority to confer standing on private parties in citizen-suit provisions, so long as it explicitly creates procedural rights and concrete interests for citizens to sue upon.10 Noting that government policies had become more “far-reaching” and that “we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition,” 11 Justice Kennedy wrote that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before . . . . In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” 12 Determining that the citizen-suit provision at issue in Lujan did not specifically provide that “any person” would suffer a cognizable injury as a result of any statutory violation, Justice Kennedy agreed that the plaintiff environmental group lacked standing to sue.13

The Court decided FEC v. Akins, a 1998 case, consistently with Justice Kennedy’s views, holding that Congress may confer standing by providing a general procedural right of access to information to “any party,” and that deprivation of this right is a sufficiently concrete injury for standing purposes and not a generalized grievance.14 More than a decade later, in Massachusetts v. EPA, a majority of the Court formally adopted Justice Kennedy’s view that Congress may create standing to sue by identifying cognizable injuries and creating procedural rights for citizens to sue upon to redress those injuries.15 In Summers v. Earth Island Institute, the Supreme Court reaffirmed that the deprivation of a litigant’s procedural right—the right to use a federal administrative appeals process to challenge certain actions of the U.S. Forest Service—without injury to any separate concrete interest cannot support Article III standing to sue.16 But, in a concurrence, Justice Kennedy again suggested that the result would have been different—and Massachusetts v. EPA would have applied—if Congress had specifically identified a separate concrete interest that would have been affected by the deprivation of the procedural right.17

As the Court held more recently in Spokeo v. Robins, federal courts will judge whether the defendant’s alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether it is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” 18 But in doing so, courts must give at least some weight to Congress’s judgments about which intangible harms amount to concrete Article III injuries.19

The principle emerging from these cases is that Congress has some ability to expand standing beyond the Court’s traditional conception by granting a litigant a separate concrete interest, apart from a bare procedural right, that could serve as the basis for an injury-in-fact if violated.20 At the same time, Congress must respect the limits that Article III establishes, and it cannot elevate certain categories of harm to the status of concrete injuries. For example, Congress likely cannot elevate a trivial injury, such as a company reporting an incorrect zip code for an individual, to the status of an Article III injury.21 The Court has not articulated a clear rule for distinguishing between the types of intangible harms Congress may elevate to injuries-in-fact for standing purposes and those harms that are simply too trivial to serve as Article III injuries.22 However, the Court has confirmed that it will independently review whether such harms are in fact “concrete injuries” sufficient for standing purposes.23

1: Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992).
2: Hardin v. Ky. Utils. Co., 390 U.S. 1, 6–7 (1968) (determining that a utility company had standing to challenge the TVA’s supply of power in competition with certain utility companies because, as a competitor of TVA, the Kentucky Utilities Company fell within the zone of interests that Congress sought to protect in a federal statute from competitive injury even when the statute did not specifically confer standing and the plaintiff’s alleged competitive injuries would not have sufficed by themselves for standing).
3: Havens Realty Corp. v. Coleman, 455 U.S. 363, 368–69, 374 (1982) (holding that a “tester plaintiff” who pretended to be interested in renting apartments for the purpose of obtaining evidence of racially discriminatory practices had standing based on Congress’s creation of a statutory right to truthful information concerning the availability of housing); Gladstone v. Village of Bellwood, 441 U.S. 91, 114–15 (1979) (holding that homeowners in a neighborhood affected by allegedly racially discriminatory housing practices that manipulated the racial composition of the neighborhood had suffered a cognizable Article III injury for purposes of suing under the Fair Housing Act). See also Lujan, 504 U.S. at 578; cf. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972) (concluding that tenants of an apartment complex who had been deprived of the benefits of interracial association as a result of discriminatory rental practices had standing to sue their landlord under the Fair Housing Act).
4: Gladstone, 441 U.S. at 100.
5: 504 U.S. 555 (1992).
6: Id. at 572. The Court distinguished this situation from one in which “plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,” such as “a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them.” Id.
7: Id. at 572 n.7 ( “The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” ).
8: Id. at 573–74. Justice Antonin Scalia later referred to this type of procedural right as a “procedural right in vacuo” that was insufficient for Article III standing. Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009).
9: Lujan, 504 U.S. at 577 (citing U.S. Const. art. II, § 3). Justice Antonin Scalia’s opinion for the Court acknowledged that Congress may be able to elevate injuries that were “previously inadequate in law” to the status of concrete Article III injuries. Lujan, 504 U.S. at 578.
10: Id.at 580–81 (Kennedy, J., concurring in part and concurring in the judgment) ( “While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way.” ).
11: Id. at 580.
12: Id.
13: Id.
14: FEC v. Akins, 524 U.S. 11, 21 (1998) (holding that a litigant’s failure to obtain information that federal law requires to be disclosed can constitute a sufficiently concrete injury for Article III standing purposes); Public Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989) (same).
15: Massachusetts v. EPA, 549 U.S. 497, 516 (2007) ( “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in judgment)).
16: 555 U.S. 488, 496 (2009).
17: Id. at 501 (Kennedy, J., concurring).
18: Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). As noted, in Spokeo v. Robins, the Court clarified that Congress cannot confer standing on plaintiffs who do not face at least a material risk of injury from the defendant’s violation of statutory rights. Id. at 343. For further discussion of Spokeo, see ArtIII.S2.C1.6.4.3 Particularized Injury.
19: Spokeo, 578 U.S. at 43.
20: Massachusetts, 549 U.S. at 516.
21: Spokeo, 578 U.S. at 343.
22: See generally id.
23: TransUnion LLC v. Ramirez, No. 20-297, slip op. at 10 (U.S. June 25, 2021).