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 concept of “standing” broadly refers to a litigant’s right to have a court rule upon the merits of particular claims for which he seeks judicial relief.1 The Supreme Court has held that, as a threshold procedural matter,2 a litigant must have standing in order to invoke the jurisdiction of a federal court so that the court may exercise its “remedial powers on his behalf.” 3 In general, for a party to establish Article III standing, he must allege (and ultimately prove) that he has a genuine stake in the outcome of the case because he has personally suffered (or will imminently suffer): (1) a concrete and particularized injury; (2) that is traceable to the allegedly unlawful actions of the opposing party; and (3) that is redressable by a favorable judicial decision.4 These requirements seek to ensure that federal courts do not exceed their Article III power to decide actual “cases” or “controversies.” 5

The Court has held that the burden of establishing standing falls upon each party who seeks a distinct form of judicial relief,6 including a party initiating a lawsuit,7 intervening in a lawsuit,8 or appealing a lower court decision.9 Each of these parties must make an appropriate showing during each stage of the litigation10 that the elements of injury, causation, and redressability existed at the outset of the lawsuit, and continue to exist,11 for each claim12 and for each form of relief sought.13 A litigant’s failure to establish standing to sue may result in dismissal of his distinct claims for relief without a decision on the merits of those claims.14

Since the 1920s, the Supreme Court has offered various justifications for these somewhat amorphous15 constitutional limitations on the categories of litigants who can maintain a claim for judicial relief in an Article III federal court.16 Perhaps the most frequently cited rationale derives from the Constitution’s separation of powers among the branches of government.17 Issues of standing often arise when a private plaintiff sues the government, seeking to have it act in accordance with the Constitution or other law.18 But, as the Court has frequently noted, the Constitution makes the political branches—and not the courts—responsible for “vindicating the public interest.” 19 As a result, unelected judges lack the authority to render advisory opinions as to whether Congress or the Executive has followed the law; they may only decide a specific case brought before the court by a party that has suffered a particularized injury as a result of the government’s actions.20 Such deference to the political branches, particularly in cases raising questions about the separation of powers,21 reflects the Court’s understanding of the “limited . . . role of the courts in a democratic society,” 22 as well as its determination that federal courts should hear only those types of cases that the English judicial system would historically have considered suitable for judicial resolution.23 And separation of powers concerns have also motivated the Court’s conclusion that Article III limits Congress’s ability to confer standing on plaintiffs to sue the government by enacting statutes containing “citizen-suit” provisions.24 Such case law has reasoned that permitting plaintiffs who do not have a personal and direct stake in the outcome of a case to sue under one of these provisions would effectively allow the Legislative Branch to intrude upon the Executive Branch’s duty to enforce the law.25

Although standing doctrine is grounded primarily in constitutional separation of powers concerns, the Supreme Court has also cited other rationales for its existence that may not be constitutional in nature. Requiring the litigant to have a personal stake in the outcome of his lawsuit ensures that a court will decide complex legal and factual issues in the context of a specific factual situation involving adverse parties who can more clearly illuminate for judges the issues in dispute.26 Even in cases in which adversity between the parties exists, standing doctrine seeks to ensure that federal courts will not exercise the judicial power, which can significantly affect the lives, liberty, and property of others, to resolve generalized grievances brought primarily for the benefit of “concerned bystanders” who seek to vindicate abstract ideological interests (for example, a general interest in the protection of the environment is insufficient to confer standing).27 More practical reasons for the standing requirements include a need to reserve the limited resources of the federal courts for concrete disputes;28 the sweeping precedential effects of the Court’s holdings on the merits in constitutional litigation, which can be difficult, if not impossible, for Congress to alter without amending the Constitution;29 and a need for the court to fashion relief no more broadly than the litigant’s situation requires.30

The Supreme Court has also previously recognized certain prudential limitations on the exercise of federal courts’ jurisdiction, which, although lacking constitutional status, may nonetheless result in a court’s refusal to hear a case: (1) when the litigant seeks to assert the rights of third parties not before the court; (2) when the litigant seeks redress for a generalized grievance widely shared by a large number of citizens; and (3) when the litigant challenges government action or inaction and its asserted interests do not fall within the zone of interests arguably protected or regulated by the statute or constitutional provision underlying its claims.31 In recent years, however, the Court has questioned the basis of the doctrine of prudential standing.32 The Court has suggested that the bar on generalized grievances is a constitutional (and not prudential) requirement.33 Moreover, the Court likewise has determined that a court applying the “zone of interests” test should examine whether the plaintiff’s claim falls within the scope of a statutory provision creating a cause of action.34 Furthermore, Congress, through express legislation, may abrogate these prudential standing requirements, to the extent that they remain viable and are not mandated by the Constitution.35

The following essays trace the development of Article III standing doctrine in Supreme Court jurisprudence from its origins in the 1920s to the development of the modern doctrine and its key elements of injury, causation, and redressability. They then examine select topics that implicate the doctrine, including cases in which a plaintiff seeks to maintain standing to challenge government action or inaction by relying solely upon his status as a taxpayer, as well as the various forms of representational standing that a litigant who has not himself sustained injury may rely upon when asserting the rights of people not before the court. Finally, they conclude with an overview of standing for Members of Congress, congressional control of standing, and what remains of the concept of prudential standing.36

Footnotes

1

Warth v. Seldin, 422 U.S. 490, 498 (1975) ( “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” ); Black’s Law Dictionary 1536 (9th ed. 2009) (defining “standing” as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right” ).

2

Federal courts must necessarily resolve standing inquiries before proceeding to the merits of a lawsuit. See, e.g., Davis v. FEC, 554 U.S. 724, 732 (2008). In fact, a court may raise the issue of standing sua sponte (i.e., of its own accord) in order to ensure that it has jurisdiction, even if no party to the lawsuit contests standing. See, e.g., Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam). Although the Supreme Court must examine a litigant’s standing when the lower court has erroneously assumed that standing exists, it will not investigate standing sua sponte in order to rule upon an issue that a lower court denied the litigant standing to bring before the court. Id.

3

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976) (quoting Warth, 422 U.S. at 498–99). See also Davis, 554 U.S. at 732; Simon, 426 U.S. at 37 ( “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. The concept of standing is part of this limitation.” ) (citation omitted); Warth, 422 U.S. at 498–99 ( “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.” ). The Court has occasionally invoked the English common law tradition as supporting its inquiry into a litigant’s standing. See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011) ( “In the English legal tradition, the need to redress an injury resulting from a specific dispute taught the efficacy of judicial resolution and gave legitimacy to judicial decrees. . . . The Framers paid heed to these lessons.” ).

4

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (listing the elements of standing). For further discussion on the elements of Article III standing, see ArtIII.S2.C1.6.4.1 Overview of Lujan Test.

5

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) ( “Article III, § 2, of the Constitution extends the ‘judicial Power’ of the United States only to ‘Cases’ and ‘Controversies.’ We have always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial process.” ).

6

The Supreme Court has indicated that if one party to a lawsuit has standing, other entities can join as parties without having to satisfy independently the demands of Article III, provided those parties do not seek a distinct form of relief from the party with standing. E.g., Horne v. Flores, 557 U.S. 433, 446 (2009) (determining that, because a school superintendent had standing to challenge lower court decisions in which he was named a defendant, the Court did not need to consider whether interveners, who were state legislators, had standing); Davis, 554 U.S. at 724 (requiring a litigant to have standing for each form of relief sought); Rumsfeld v. Forum for Acad. & Instit. Rts., Inc., 547 U.S. 47, 52 n.2 (2006) ( “[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” ); Director v. Perini N. River Assocs., 459 U.S. 297, 305 (1983) (stating that a justiciable controversy existed because an injured employee who sought coverage under the Longshoremen’s and Harbor Workers’ Compensation Act was a party respondent before the court and had standing, and thus there was no need to determine whether the Director of the Office of Workers’ Compensation Programs, as the official responsible for administration and enforcement of the Act, had standing).

7

FW/PBS Inc. v. Dallas, 493 U.S. 215, 231 (1990) ( “[P]etitioners in this case must allege . . . facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing.” ) (citations and internal quotation marks omitted).

8

A party seeking to intervene in a lawsuit (i.e., seeking to join a lawsuit already in progress) as a matter of right must have Article III standing to seek judicial relief that differs from that sought by the other litigants with standing. Town of Chester v. Laroe Estates, Inc., No. 16-605, slip op. at 6 (U.S. June 5, 2017); Wittman v. Personhuballah, 578 U.S. 539, 543 (2016).

9

Diamond v. Charles, 476 U.S. 54, 56 (1986).

The Supreme Court also addressed standing on appeal in a 2011 case in which government employees that had obtained a favorable judgment on the basis of qualified immunity sought to appeal a lower court’s ruling that their conduct had violated the Constitution. The Court held that these officials had Article III standing because they had a personal stake in seeing the ruling overturned, as its mere existence could lead to the risk of future liability for them. Camreta v. Greene, 563 U.S. 692, 703 (2011) ( “If the official regularly engages in that conduct as part of his job . . . he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action.” ).

Standing on appeal may also be based on an alleged injury arising from the decision below—for example, where the lower court had ordered the appealing party to comply with a government demand that would injure that party, and overturning the lower court’s decision would redress the injury by absolving the appealing party of an obligation to comply with the demand. See Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7 slip op. at 9 (U.S. June 29, 2020) (stating that a petitioner had “appellate standing” where the petitioner suffered a “concrete injury” that was “traceable to the decision below” and could be redressed by the Court). See also West Virginia v. Env’t Prot. Agency, No. 20-1530, slip op. at 14 (U.S. June 30, 2022).

10

Hollingsworth v. Perry, 570 U.S. 693 (2013); Davis, 554 U.S. at 734 ( “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief sought. . . . While the proof to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” ) (citations and internal quotation marks omitted). See also Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 255–56 (1994) (observing that, at the pleading stage, the plaintiff may have standing sufficient to withstand a motion to dismiss if he sets forth “general factual allegations of injury resulting from the defendant’s conduct” ) (citation omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting that the plaintiff’s burden of proof on the standing issue differs depending on whether the case is at the pleading stage, the plaintiff is responding to a motion for summary judgment, or the case has gone to trial).

11

Davis, 554 U.S. at 732–33 ( “[I]t is not enough that the requisite interest exist at the outset. ‘To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time complaint is filed.’” (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). If an injury no longer exists as the litigation progresses, the court may also lack jurisdiction under the related doctrine of mootness. See ArtIII.S2.C1.8.1 Overview of Mootness Doctrine to ArtIII.S2.C1.8.9 Class Action Litigation and Mootness.

12

Davis, 554 U.S. at 734 ( “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief sought.” ) (internal quotation marks omitted).

13

See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) ( “Lyons fares no better if it be assumed that his pending damages suit affords him Art. III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again . . . ” ).

14

E.g., Warth v. Seldin, 422 U.S. 490, 502 (1975) (stating that if “the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed” ). But see Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 18, 2018) (declining to direct dismissal of a partisan gerrymandering case that involved “an unsettled kind of claim . . . the contours and justiciability of which are unresolved” and, therefore, remanding the case for further proceedings).

15

As discussed below, the Court’s standing jurisprudence has been inconsistent in approach over the years. See ArtIII.S2.C1.6.3 Standing Doctrine from 1940s to 1970s.

16

Although the Supreme Court has often stated that the standing inquiry focuses on whether the plaintiff is a proper party to maintain a claim for a particular form of judicial relief in federal court and not on the “issues he wishes to have adjudicated,” the Court has acknowledged the difficulty in separating the plaintiff’s status from the nature of his claims when applying principles of standing. Compare Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976) ( “[S]tanding focuses on the party seeking to get his complaint before a federal court and not on the issues he wished to have adjudicated.” (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968) (internal quotation marks omitted)), with Allen v. Wright, 468 U.S. 737, 752 (1984) ( “Typically, however, the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” ).

17

E.g., Lujan, 504 U.S. at 576.

18

See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222-23 (1974) (holding that an association of officers and enlisted members of the military reserves, as well as individual members, lacked standing to sue as taxpayers in a case arguing that the Incompatibility Clause of Article I forbid certain Members of Congress from holding commissions in the Armed Forces Reserve). Issues of standing may also arise in cases in which a litigant sues a private party under a law providing for a private right of action against a private defendant. E.g., Spokeo Inc., v. Robins 578 U.S. 330, 342 (2016).

19

Lujan, 504 U.S. at 576 ( “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.” ); Frothingham v. Mellon, 262 U.S. 447, 488 (1923) ( “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy.” ); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). When reviewing administrative action or inaction of federal agencies, courts must be wary of intruding upon the President’s duty under Article II, Section 3 of the Constitution to “take Care that the Laws be faithfully executed” by ordering the Executive to follow the law. Lujan, 504 U.S. at 577 (citing U.S. Const. art. II, § 3).

The Court has adhered to the standing doctrine even in cases in which no party exists who would have standing to challenge government action or inaction in the courts, noting that the political process is available to those seeking to vindicate generalized grievances. United States v. Richardson, 418 U.S. 166, 179 (1974).

20

See supra note 19. See also Hollingsworth v. Perry, 570 U.S. 693, 693–94 (2013) (characterizing the standing requirement as “an essential limit on [the Court’s] power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” ). For more on Article III’s bar on advisory opinions and its relationship to standing doctrine, see ArtIII.S2.C1.4.1 Overview of Advisory Opinions.

21

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408–09 (2013) ( “The law of Article III standing, which is built on separation of powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” ); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) ( “The judicial power of the United States defined by Art. III is not an unconditional authority to determine the constitutionality of legislative or executive acts.” ); id. at 474 ( “Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.” ). Thus, the Court applies the standing requirements most stringently when litigants challenge the constitutionality of an action or omission by one or both of the political branches of government. Raines v. Byrd, 521 U.S. 811, 819–20 (1997) ( “[O]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” ); Flast v. Cohen, 392 U.S. 83, 100, 101 (1968) ( “The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated.” ). The Court later stated that “Flast failed to recognize that [standing] doctrine has a separation of powers component, which keeps courts within certain traditional bounds vis-a-vis the other branches . . . ” Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996). In the Court’s early years, Chief Justice John Marshall noted that if federal courts could hear “every question under the Constitution,” rather than traditional “cases” or “controversies,” then federal courts would have jurisdiction over many issues that should be the subject of legislative discussion and decision. 4 Papers of John Marshall 95 (Charles Cullen ed., 1984) ( “If the judicial power extended to every question under the Constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.” ). The French sociologist and political theorist Alexis de Tocqueville once noted the benefits of the U.S. federal judiciary’s requirement that a litigant have a direct stake in the outcome of legal proceedings to maintain a lawsuit, stating that: “It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.” 1 Alexis de Tocqueville, Democracy in America 102 (Philips Bradley, ed., 1945).

22

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011) ( “Continued adherence to the case-or-controversy requirement of Article III maintains the public’s confidence in an unelected but restrained Federal Judiciary.” ).

23

Spokeo, 578 U.S. at 337 ( “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” ); Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) ( “In limiting the judicial power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.” )

24

Lujan, 504 U.S. at 577.

25

Id. ( “To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’” ) (quoting U.S. Const. art. II, § 3).

26

Baker v. Carr, 369 U.S. 186, 204 (1962) (stating that the parties invoking the court’s jurisdiction must have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” ).

27

United States v. SCRAP, 412 U.S. 669, 687 (1973) (stating that the injury-in-fact requirement of standing “prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders” ). See also Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) ( “While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” ); Diamond v. Charles, 476 U.S. 54, 62 (1986); Valley Forge Christian Coll., 454 U.S. at 472–73 ( “[The standing requirement] tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. . . . The [Article III] aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.” ).

28

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 191 (2000) ( “Standing doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.” ).

29

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 146 (2011) ( “Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’s power to change.” ).

30

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974).

31

United States v. Windsor, 570 U.S. 744, 760 (2013) ( “Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon ‘that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’” (quoting Baker, 369 U.S. at 204); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (listing the three types of prudential restraints); Gladstone v. Village of Bellwood, 441 U.S. 91, 99–100 (1979).

32

Lexmark Int’l Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 n.3 (2014).

33

Id.

34

Id.

35

Warth v. Seldin, 422 U.S. 490, 501 (1975) ( “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.” ).

36

Federal rules for standing do not apply in state courts, which may have their own rules not addressed in this essay. Asarco, Inc. v. Kadish, 490 U.S. 605, 617 (1989) ( “We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or . . . a federal statute.” ). However, when a state court enters a judgment in a case in which the plaintiffs would not have had standing had they brought the case in federal court, a party may have standing to appeal that judgment in federal court if the judgment rests upon an allegedly incorrect interpretation of federal law and causes the appellant direct injury. Id. at 623–24 ( “When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review, where the requisites of a case or controversy are also met.” ) (citations omitted).