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CRS Annotated Constitution

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[p.658]

Constitutional Standards: Injury in Fact, Causation, and Redressability.—While the Court has been inconsistent over time, it has now settled upon the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the party seeking to sue must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of defendant and that the injury is likely to be redressed by a favorable decision.340

For some time, injury alone was not sufficient; rather, the injury had to be “a wrong which directly results in the violation of a legal right,”341 that is, “one of property, one arising out of contract, one protected against tortious invasion, or one founded in a statute which confers a privilege.”342 The problem was that the “legal right” language was “demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.”343 The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property rights.344

Supplement: [P. 658, insert the following after the word “Now” in sentence following n.345:]

political,12

In any event, the “legal rights” language has now been dispensed with. Rejection occurred in two administrative law cases in which the Court announced that parties had standing when they suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.345 Now,[p.659]environmental, aesthetic, and social interests, when impaired, afford a basis for making constitutional attacks upon governmental action.346 The breadth of the injury in fact concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices. The subjective and intangible interests of persons in enjoying the benefits of living in integrated communities were found sufficient to permit them to attack actions which threatened or harmed those interests even though the actions were not directed at them.347 Similarly, the interests of individuals and associations of individuals in using the environment afforded them the standing to challenge actions which threatened those environmental conditions.348 Nonetheless, the Court has also in constitutional cases been wary of granting standing to persons who alleged threats or harm to interests which they shared with the larger community of people at large, a rule against airing “generalized grievances” through the courts,349 although it is unclear whether this rule (or subrule) has a constitutional or a prudential basis.350 [p.660]And in a number of cases, the Court has refused standing apparently in the belief that the assertion of harm is too speculative or too remote to credit.351

Supplement: [P. 659, add to text following n.347:]

In FEC v. Akins,13 the Court found “injury–in–fact” present when plaintiff voters alleged that the Federal Election Commission had denied them information, to which they alleged an entitlement, respecting an organization that might or might not be a political action committee. Congress had afforded persons access to the Commission and had authorized “any person aggrieved” by the actions of the FEC to sue to challenge the action. That the injury was widely shared did not make the claimed injury a “generalized grievance,” the Court held, but rather in this case, as in others, it was a concrete harm to each member of the class. The case is a principal example of the ability of Congress to confer standing and to remove prudential constraints on judicial review.

Supplement: [P. 659, add to text following n.348:]

Even citizens who bring qui tam actions under the False Claims Act, an action that entitles them to a percentage of any civil penalty assessed for violation, have been held to have standing, on the theory that the government has assigned a portion of its damages claim to the plaintiff, and the assignee of a claim has standing to assert the injury in fact suffered by the assignor.14

Of increasing importance are the second and third element of standing, recently developed and held to be of constitutional requisite. Thus, there must be a causal connection between the injury and the conduct complained of; that is, the Court insists that the plaintiff show that “but for” the action, she would not have been injured. And the Court has insisted that there must be a “substantial likelihood” that the relief sought from the court if granted would remedy the harm.352 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, since they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them.353 Low–income persons seeking the invalidation of a town’s restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained–of injury, inability to obtain adequate housing within their means, was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing.354 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private[p.661]schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school.355 But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that “but for” the passage of the law there was a “substantial likelihood,” based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries.356 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have as a consequence injured the claimants.357

Supplement: [P. 661, add to text at end of section:]

Redressability can be present in an environmental citizen suit even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, “carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones.” 15


Footnotes

340 Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 112Ct.2130,2136 (1992). See, however, United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the personal stake requirement. Id., 404 n. 11, reserving full consideration of the dissent’s argument at id ., 401 n. 1, 420–421.
341 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm., 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F Ry., 357 U.S. 77 (1958).
342 Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
343 C. Wright, op. cit., n. 326, 65–66.
344 E.g., Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958) (same); Abington School District v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430–431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr 369 U.S. 186, 204–208 (1962) (voting rights).
345 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the language. Thus, in Lujan v. Defenders of Wildlife, 112Ct.2130,2136 (1992), the Court refers to injury in fact as “an invasion of a legally–protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations.
346 E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137– 2138 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977); Singleton v. Wulff, 428 U.S. 106, 112–113 (1976); Warth v. Seldin, 422 U.S. 490, 498–499 (1975); Shea v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617–618 (1973).
347 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). While Congress had provided for standing in the Act, thus removing prudential considerations affecting standing, it could not abrogate constitutional constraints. Gladstone, Realtors, supra, 100. Thus, the injury alleged satisfied Article III.
348 Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 412 U.S. 669, 687–688 (1973); Duke Power Co., v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 112Ct.2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan v. Defenders of Wildlife, supra, 2139–2140. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted. In Duke Power, supra, 78–81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of liability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–265 (1991).

Supplement: [P. 659, add to n.348 at end of string citation:]

Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693 (2000).

349 See supra, nn.329–330.
350 Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again prudential.
351 E.g. Laird v. Tatum, 408 U.S. 1 (1972) (“allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”). See also O’Shea v. Littleton, 414 U.S. 488 (1974); California Bankers Assn. v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371– 373 (1976). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court held that victim of police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him.
352 Lujan v. Defenders of Wildlife, 112Ct.2130,2136 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612–617 (1989) (plurality opinion). Although the two tests were initially articulated as two facets of a single requirement, the Court now insists they are separate inquiries. Id., 468 U.S., 753 n. 19. “To the extent there is a difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested.” Id.

Supplement: [P. 660, add to n.352:]

In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) , the Court denied standing because of the absence of redressability. An environmental group sued the company for failing to file timely reports required by statute; by the time the complaint was filed, the company was in full compliance. Acknowledging that the entity had suffered injury in fact, the Court found that no judicial action would afford it a remedy.

353 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked standing to contest prosecutorial policy of utilizing child support laws to coerce support of legitimate children only, since it was “only speculative” that prosecution of father would result in support rather than jailing).
354 Warth v. Seldin, 422 U.S. 490 (1975). But in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), a person who alleged he was seeking housing in the community and that he would qualify if the organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low–income persons like himself was held to have shown a “substantial probability” that voiding of the ordinance would benefit him.
355 Allen v. Wright, 468 U.S. 737 (1984). But compare Heckler v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in conferral of benefits were held to have standing to challenge the treatment, although a judicial order could only have terminated benefits to the favored class. In that event, members would have secured relief in the form of equal treatment, even if they did not receive benefits. And see Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr, 440 U.S. 268, 271–273 (1979).
356 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–78 1978). The likelihood of relief in some cases appears to be rather speculative at best. E.g., Bryant v. Yellen, 447 U.S. 352, 366–368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160–162 (1981).
357 Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 468 U.S. 737, 756–761 (1984).

Supplement Footnotes

12 Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) .
13 524 U.S. 11 (1998) .
14 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 120 S. Ct. 1858 (2000). The Court confirmed its conclusion by reference to the long tradition of qui tam actions, since the Constitution’s restriction of judicial power to “cases” and “controversies” has been interpreted to mean “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Id. at 1863.
15 Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693, 707 (2000).
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