The Shifting Frontiers of Standing: How Litigation Over Border Wall Funding Is Exposing Standing's Current Doctrinal Fault Lines

Abstract

When President Trump announced that he was diverting funds from other items in the federal budget to satisfy a campaign promise to build a wall on the U.S.–Mexico border, a range of litigants lined up to challenge this action in the courts, including nonprofit organizations; state governments; the border county of El Paso, Texas; and the U.S. House of Representatives. At the heart of many of these cases is the question whether the plaintiffs have standing to challenge the Trump Administration’s actions. Because of the range of plaintiffs, and the diversity of harms they allege they have suffered as a result of these actions, this litigation provides a useful lens through which to view the current state of standing doctrine and explore the frequently shifting frontiers of standing jurisprudence: where it is has been, where it is now, and where it may be going in the future. Any inquiry into a plaintiff ’s standing to sue necessarily entails an analysis of the now familiar standard set forth by the Court in Lujan v. Defenders of Wildlife, which requires that a plaintiff establish that she has suffered an injury in fact that is fairly traceable to the challenged conduct and redressable by a court of law. But there are also other questions that often arise, as these cases are showing, like whether a plaintiff falls within the zone of interests of the protections under which she is suing, whether the litigant can pursue so called third party standing, whether groups can assert the rights of their members, and whether government actors can invoke the courts to address violations of the law or constitutional claims about the functioning of government. This Article explores these and other questions to show how the border wall litigation, with a range of plaintiffs raising a range of claims, is a useful medium through which to view the current state of standing doctrine and where it may go next.

Keywords: Standing, Border Wall Litigation

JEL Classification: K41