Standing up to the Regulatory State: Is Standing's Redressability Requirement an Obstacle to Challenging Regulations in an Over-Regulated World?

Abstract

Most any industry, property owner, or individual is simultaneously subject to countless regulations at the local, state, and federal levels. That is an unavoidable consequence of living in the modern administrative state. At least some of those regulations are arbitrary or unreasonable, exceed statutory authority, or conflict with constitutional principles, and therefore subject to challenge under the Administrative Procedure Act and similar state laws.

This article addresses whether such regulations may nonetheless be immune to challenge in federal court due to the sheer number of regulatory controls already in place. In particular, it asks whether standing’s “redressability” requirement bars challenges to illegal regulations where other, unchallenged regulations could also bar the plaintiff’s desired conduct.

The answer is “no.” Regulatory challenges can provide many forms of relief short of complete immunity from government regulation. For instance, these challenges may reduce the number of regulatory restrictions that apply, the severity of punishment for violations, or the number of agencies or government’s whose permission must be obtained. Any of these would provide sufficient redress for standing purposes. Consequently, a plaintiff challenging a regulation that applies to her satisfies redressability even if other regulations would continue to apply to her.

Keywords: Standing, Regulation, Overregulation, Redressability, Article III, Judicial Power, Larson v. Valente, Arlington Heights, Objects of the Regulation, Admin Law, Administrative Law, Regulatory, Regulatory State, Administrative State

JEL Classification: K1, K32, K23, K40, K41