The Standing Doctrine's Dirty Little Secret

Abstract

For the last forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or altogether eliminate those requirements in many “procedural rights” cases — ones in which a federal statute creates a right to have government follow a particular procedure, including to provide judicial review of agency decisions. This Article asks how best to rationalize this contradiction. After examining several possibilities, we conclude that the best course is to recognize openly that the Case or Controversy Clause of Article III means different things in different types of litigation. In one “tier” — cases where Congress has made it clear that it has created procedural rights that may be vindicated in court without meeting the usual injury, causation, and redressability requirements — the plaintiff should merely be required to show that he or she falls within the “zone of interests” the statute aims to protect. In all other cases — the other “tier”—existing Article III standing requirements would apply.

Keywords: Lujan, standing, procedural rights, agency action, Article III, case or controversy