CRS Annotated Constitution

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Prudential Standing Rules.—Even when Article III constitutional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims.358 With respect to the prudential rules, it is clear that the Court feels free to disregard any of these principles in cases in which it thinks exceptionable circumstances exists,359 and Congress is free to legislate away prudential restraints upon the Court’s jurisdiction and confer standing to the furtherest extent permitted by Article III.360 The Court has identified three[p.662]rules as prudential ones,361 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff’s interest, to which she asserts an injury, must come within the “zone of interest” arguably protected by the constitutional provision or statute in question362 and that plaintiffs may not air “generalized grievances” shared by all or a large class of citizens.363 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court.

Supplement: [P. 661, add to text following n.360:]

In a case permitting a plaintiff contractors’ association to challenge an affirmative–action, set–aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too “speculative” or too “contingent.” 16 The association had sued, alleging that many of its members “regularly bid on and perform construction work” for the city and that they would have bid on the set–aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause established a relevant proposition. “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. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” 17 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis.18

Standing to Assert the Constitutional Rights of Others.— Usually, one may assert only one’s interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else.364 In Tileston v. Ullman,365 an early round in the attack on a state anticontraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held he had no standing; no right of his was infringed, and he could not represent the interests of his patients. But there are[p.663]several exceptions to this part of the standing doctrine that make generalization misleading. Many cases allow standing to third parties if they demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson,366 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed.367 Similarly, the Court has permitted defendants who have been convicted under state law—giving them the requisite injury—to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question.368 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury requirement—to represent the rights of third parties with whom the challenged law has interfered with a relationship.369 It is also possible, of course, that one’s own rights can be affected by action directed at someone from another group.370


A substantial dispute was occasioned in Singleton v. Wulff,371 over the standing of doctors, who were denied Medicaid funds for the performance of abortions not “medically indicated,” to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible.372

Following Wulff, the Court emphasized the close attorney–client relationship in holding that a lawyer had standing to assert his client’s Sixth Amendment right to counsel in challenging application of a drug–forfeiture law to deprive the client of the means of paying counsel.373 However, a “next friend” whose stake in the outcome is only speculative must establish that the real party in interest is unable to litigate his own cause because of mental incapacity, lack of access to courts, or other disability.374

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him.375 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may be enabled to assert its unconstitutionality thereby.376


358 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979) (“a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim”).
359 Warth v. Seldin, 422 U.S. 490, 500–501 (1975); Craig v. Boren, 429 U.S. 190, 193–194 (1976).
360 “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of “statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co ., 409 U.S. 205 (1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n. 4, 11–12 (1976). For a good example of the congressionally– created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–375 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester’s right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation–of–powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142–2146 (1992).

Supplement: [Pp. 661–62, add to n.360:]

Justice Scalia, who wrote the opinion in Lujan, reiterated the separation–of–powers objection to congressional conferral of standing in FEC v. Akins, 524 U.S. 11, 29, 36 (1998) (alleged infringement of President’s “take care” obligation), but this time in dissent; the Court did not advert to this objection in finding that Congress had provided for standing based on denial of information to which the plaintiffs, as voters, were entitled.

361 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–475 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984).
362 Assn. of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org ., 426 U.S. 26, 39 n. 19 (1976); Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Assn., 479 U.S. 388 (1987).

Supplement: [P. 662, add to n.362:]

See also Bennett v. Spear, 520 U.S. 154 (1997) .

363 United States v. Richardson, 418 U.S. 166, 173, 174–176 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687–688 (1973), a congressional conferral case, the Court agreed that the interest asserted was one shared by all, but the Court has disparaged SCRAP, asserting that it “surely went to the very outer limit of the law,” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990).
364 United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986).
365 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508– 510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent).
366 346 U.S. 249 (1953).
367 See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a Negro had standing to contest constitutionality of ordinance barring sale of property to African Americans, inasmuch as black defendant was relying on ordinance as his defense); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory private club could raise rights of black assignee in seeking injunction against expulsion from club).
368 E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; while use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons not subject to prosecution and were thus impaired in ability to obtain them or gain forum to assert rights).
369 E.g., Doe v. Bolton, 410 U.S. 179, 188–189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution in order to determine their validity); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was “obvious claimant” to raise issue); Carey v. Population Services Intl., 431 U.S. 678, 682–684 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).
370 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant had a right to a jury comprised of a fair cross section of the community).

Supplement: [P. 663, add to n.370:]

The Court has expanded the rights of non–minority defendants to challenge the exclusion of minorities from petit and grand juries, both on the basis of the injury–in– fact to defendants and because the standards for being able to assert the rights of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991) ; Campbell v. Louisiana, 523 U.S. 392 (1998) .

371 428 U.S. 106 (1976).
372 Compare id., 112–118 (Justices Blackmun, Brennan, White, and Marshall), with id., 123–131 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower grounds limited to this case.
373 Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n. 3 (1989).
374 Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row inmate’s challenge to death penalty imposed on a fellow inmate who knowingly, intelligently, and voluntarily chose not to appeal cannot be pursued).
375 United States v. Raines, 362 U.S. 17, 21–24 (1960).
376 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id., 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771–773 (1982). But the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Assn., 484 U.S. 383 (1988).

Supplement Footnotes

16 Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) . Thus, it appears that had the Court applied its standard in the current case, the results would have been different in such cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973) ; Warth v. Seldin, 422 U.S. 490 (1975) ; Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) ; and Allen v. Wright, 468 U.S. 737 (1984) .
17 508 U.S. at 666. The Court derived the proposition from another set of cases. Turner v. Fouche, 396 U.S. 346 (1970) ; Clements v. Fashing, 457 U.S. 957 (1982) ; Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978) .
18 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993) , in which the Court, over the dissent’s reliance on Jacksonville, id. at 81–2, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19.
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