Standing to Sue in the Absence of Prosecution: Can a Case Be Too Controversial for Case or Controversy?

Abstract

The question of when a person may file a pre-prosecution civil challenge to a statute frequently arises in Federal courts. The issue arises in light of judicial power, which is limited to "cases or controversies," and does not encompass advisory decisions.

The Supreme Court has, over the last fifty years, steadily liberalized requirements for bringing a constitutional challenge to a criminal statute, to the point where standing to sue is established by the existence of an arguably unconstitutional law, and plaintiff's abstention from conduct in order to avoid violating it. This has the desirable functions of invalidating unconstitutional laws without requiring the challenging party to risk conviction,and reducing the risk that such a law, if unenforced, would chill legitimate conduct while remaining beyond review.

By and large, the Circuit courts have followed the Supreme Court's standards. However, in three Circuits, anomalous case law has developed that applies a much stricter standard, virtually requiring a personal, one-on-one, threat to prosecute. This stricter standard is, however, only applied in certain forms of challenges, whose common element appears to be that they are challenges the Circuits dislike on policy grounds.

Two of the Circuits appear to be trying to work around the anomalous case law, by distinguishing and narrowing it. But a complete change will require en banc review, with all its burdens.

Keywords: standing, case or controversy, constitutional law

JEL Classification: K29, K41