CRS Annotated Constitution

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Substantial Interest: Standing

Perhaps the most important element of the requirement of adverse parties may be found in the “complexities and vagaries” of the standing doctrine. “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.”322 The “gist of the question of standing” is whether the party seeking relief has “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.”323 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. “[T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper – and properly limited – role of the courts in a democratic society.”’324

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render[p.655]decisions,325 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.326 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to stiffen the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court’s generalizations and the results it achieves are often at variance.327

The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts.328

Citizen Suits.—Persons do not have standing to sue to enforce a constitutional provision when all they can show or claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, Sec. 6, cl. 2, was denied standing.329 “The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.”330


Taxpayer Suits.—Save for a narrowly cabined exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon,331 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those States that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer’s “interest in the moneys of the Treasury . . . is comparatively minute and indeterminate” and that “the effect upon future taxation, of any payment out of the funds . . . [is] remote, fluctuating and uncertain,” the Court ruled that plaintiff had failed to allege the type of “direct injury” necessary to confer standing.332

Taxpayers were found to have standing, however, in Flast v. Cohen,333 to contest the expenditure of federal moneys to assist religious–affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means, a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, Sec. 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means, the taxpayer must show the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, rather than simply to argue the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the establishment clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, while Frothingham had alleged only that the Tenth Amendment had been exceeded. Reserved was the question[p.657]whether other specific limitations constrained the taxing and spending clause in the same manner as the establishment clause.334

Since Flast, the Court has refused to expand it. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, Sec. 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, Sec. 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, Sec. 8, but rather was to executive action in permitting Members to maintain their reserve status.335 An organization promoting church–state separation was denied standing to challenge an executive decision to donate surplus federal property to a church–related college, both because the contest was to executive action under a valid piece of legislation and because the property transfer was not pursuant to a taxing and spending clause exercise but was taken under the property clause of Article IV, Sec. 3, cl. 2.336 It seems evident that for at least the foreseeable future taxpayer standing will be restricted to establishment clause limitations on spending programs.

Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education,337 such a taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools.338 But in Doremus v. Board of Educ.,339 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. No measurable disbursement of public funds was involved in this type of activity, so that there was no direct injury to the taxpayer, a rationale similar to the spending program–regulatory program distinction of Flast.


322 Flast v. Cohen, 392 U.S. 83, 99 (1968). That this characterization is not the view of the present Court, see Allen v. Wright, 468 U.S. 737, 750, 752, 755–756, 759–761 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id., 102; United States v. Richardson, 418 U.S. 166, 174–175 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 78–79 (1978).
323 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id., 227.
324 Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated “by reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity,’ . . . and only when adjudication is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.”’ Id., 752 (quoting, respectively, Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation–of–powers barrier to standing, see Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2135–2136, 2142–2146 (1992).
325 E.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471–476 (1982); Allen v. Wright, 468 U.S. 737, 750–751 (1984).
326 C. Wright, Handbook of the Law of Federal Courts (St. Paul: 4th ed. 1983), 60.
327 “[T]he concept of ‘Art. III standing’ has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is probably proof that the concept cannot be reduced to a one–sentence or one–paragraph definition.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). “Generalizations about standing to sue are largely worthless as such.” Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151 (1970). For extensive consideration of the doctrine, see Hart & Wechsler, op. cit., n.250, 107–196.
328 Thus, state courts could adjudicate a case brought by a person without standing in the federal sense. If the plaintiff lost, he would have no recourse in the United States Supreme Court, inasmuch as he lacks standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant may be able to appeal, because he might well be able to assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).
329 Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208 (1974).
330 Id., 217. See also United States v. Richardson, 418 U.S. 166, 176–177 (1974); Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); Whitmore v. 495 U.S. 149 (1990); Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2143–2145 (1992). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v. Tatum, 408 U.S. 1 (1972).
331 Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits being consolidated.
332 Id., 487, 488.
333 392 U.S. 83 (1968).
334 Id., 105.
335 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 227–228 (1974).

Supplement: [P. 657, add to n.335:]

Richardson’s generalized grievance constriction does not apply when Congress confers standing on litigants. FEC v. Akins, 524 U.S. 11 (1998) . When Congress confers standing on “any person aggrieved” by the denial of information required to be furnished them, the statutory entitlement is sufficient, and it matters not that most people will be entitled and will thus suffer a “generalized grievance.” Id. at 21–25.

336 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982).

Supplement: [P. 657, add to n.336:]

The Court’s present position on Flast is set out severely in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) , in which the Court largely plays down the “serious and adversarial treatment” prong of standing and strongly reasserts the separation–of–powers value of keeping courts within traditional bounds. The footnote is a response to Justice Souter’s separate opinion utilizing Flast, id., 398– 99, for a distinctive point.

337 330 U.S. 1 (1947).
338 See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel. McCollom v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers).
339 342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974).
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