ArtIII.S2.C1.6.4.2 Concrete Injury

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.

First, to have an injury-in-fact, a litigant must establish that he has suffered or is imminently threatened with a “concrete” injury—that is, an injury that is “real” and not “abstract.” 1 Although the Supreme Court has not clearly articulated what makes a particular harm sufficiently concrete for standing purposes, it has provided some broad guidance. Over the years, the Court has decided several cases that explain the general types of injuries that qualify as concrete.2 Many of these cases required the Justices to determine whether an intangible injury sufficed for standing. The Court has identified several arguably noneconomic harms to be concrete injuries, including aesthetic injuries (e.g., harm to a plaintiff’s ability to observe an animal species);3 recreational injuries (e.g., injury to a plaintiff’s enjoyment of natural resources such as a park);4 certain procedural injuries (e.g., injury to a litigant’s right to have an agency prepare an environmental impact statement for a federal agency action that affects his interests);5 injuries to constitutional rights;6 dilution of the effectiveness of a citizen’s vote in a federal election;7 and stigmatic injuries from racial discrimination.8 By contrast, the Court has held that concrete injuries would not include, for example, psychological harm from observing the federal government’s use of taxpayer money to provide financial assistance to a religious institution9 or harms to the plaintiff’s general interest in advancing abstract interests (e.g., an interest in having low-income people access health services).10 Notably, the fact that an injury is “particularized” —or, in other words, that it affects the plaintiff individually11 —does not necessarily make that injury a concrete harm.

Congress, by statute, can influence a court’s standing analysis, but Congress cannot itself create standing in the absence of the constitutional prerequisites. When determining 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, the Court has stated that federal courts should examine whether the injury is similar to a harm that “has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” 12 But in doing so, courts must also give at least some weight to Congress’ judgments about which intangible harms amount to concrete Article III injuries.13 Thus, although Congress may, through enactment of legislation, elevate certain harms to the status of concrete injuries for standing purposes,14 Congress cannot create standing for litigants who do not face at least a material risk of injury from a defendant’s violation of the litigant’s statutory rights.15

Footnotes
1
Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016). back
2
See, e.g., Food Mktg. Inst. v. Argus Leader Media, No. 18-481, slip op. at 4–5 (U.S. June 24, 2019) (holding that the U.S. Department of Agriculture’s disclosure of annual store-level data regarding redemption of Supplemental Nutrition Assistance Program benefits under the Freedom of Information Act would constitute a cognizable competitive and financial injury to grocery retailers); Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324–26 (2008) (holding that a tribal court’s exercise of jurisdiction over a discrimination claim against a non-Indian bank is a sufficiently concrete injury); Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331 (1999) (determining that a voter’s loss of a Representative to the United States Congress is a sufficiently concrete harm); GMC v. Tracy, 519 U.S. 278, 286 (1997) (stating that liability for payment of a tax that allegedly discriminated against out-of-state interests in violation of the Commerce Clause amounts to a concrete harm); Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (holding that a litigants’ loss of a right to sue in the forum of their choosing is a concrete harm); Franchise Tax Bd. v. Alcan Aluminum, 493 U.S. 331, 336 (1990) (determining that shareholders’ reduced returns on their investments from an accounting method employed by California in calculating taxable income of companies in which they had invested is a concrete harm); Meese v. Keene, 481 U.S. 465, 476 (1987) (finding the government’s designation of film exhibitor’s film as “political propaganda” is a sufficiently concrete harm for standing purposes). back
3
E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992). back
4
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686–87 (1973). back
5
See, e.g., Lujan, 504 U.S. at 572 n.7. See also 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 of his procedural statutory right for Article III standing purposes). back
6
See, e.g., Spokeo, 578 U.S. at 341 (noting that injuries to First Amendment rights to free speech and free exercise of religion may amount to concrete injuries). But see Laird v. Tatum, 408 U.S. 1, 13–16 (1972) (finding that civilians lacked standing to challenge the Department of the Army’s alleged surveillance of peaceful political activity because they failed to allege a specific harm, beyond speculation, that it had a chilling effect on the exercise of their First Amendment rights). back
7
Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331–32 (1999) (stating that “voters have standing to challenge an apportionment statute because they are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes.” ) (citations and internal quotation marks omitted). back
8
Allen v. Wright, 468 U.S. 737, 755 (1984) ( “There can be no doubt that [the stigmatizing injury caused by racial discrimination] is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing.” ). The Court has also held that a litigant may have standing when it alleges injury from the federal government’s disregard of the basic structure of government established in the Constitution. back
9
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982) (indicating that psychological injuries stemming from the plaintiffs witnessing “conduct with which [they] disagree[d]” was an insufficient injury for standing). back
10
Summers v. Earth Island Inst., 555 U.S. 488, 497–98 (2009) (rejecting environmental organizations’ argument that they had suffered a concrete injury because there was a “statistical probability” that at least some of their hundreds of thousands of members nationwide were threatened with concrete harm from Forest Service regulations); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39–40 (1976) ( “We note at the outset that the five respondent organizations, which described themselves as dedicated to promoting access of the poor to health services, could not establish their standing on the basis of that goal. Our decisions make clear that an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by [Article III].” ). But see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) ( “If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.” ). back
11
For more on the Article III requirement that the plaintiff have suffered a particularized injury, see ArtIII.S2.C1.6.4.3 Particularized Injury. back
12
Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). back
13
Id. at 343. back
14
Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992) ( “As we said in Sierra Club, statutory ‘broadening of the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.’” ). back
15
Spokeo, 578 U.S. at 343; Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). See also Thole v. U.S. Bank N.A., No. 17-1712, slip op. at 4 (U.S. June 1, 2020) (rejecting the argument that the existence of a general cause of action for participants in a defined-benefit plan in the Employee Retirement Income Security Act of 1974 sufficed to provide Article III standing). back