More than 2.6 million people tuned in to hear the Ninth Circuit’s oral argument in State of Washington, et al., vs. Donald Trump, President of the United States, et al, one of the cases challenging the Muslim refugee ban. It was a remarkable display of public interest in the workings of the federal judiciary. Those curious citizens were then treated to a lengthy argument over standing, one of the more obscure and frustrating doctrines in the law.
“Standing” refers to a particular plaintiff’s ability to bring a particular claim. If your third cousin gets hit by a drunk driver, your third cousin has “standing” to sue the drunk driver. You, however, do not have “standing” to bring that lawsuit. It sounds like such a straightforward issue, but, thanks to years of dubious Supreme Court precedent, “standing” is now a doctrinal morass that sporadically results in the dismissal of important cases, leaving a wide swath of potentially illegal or unconstitutional actions unreviewable by any court.
When it comes to high-profile, politically-charged lawsuits, “standing” is often the key issue. Standing is the Trump Administration’s primary argument against the immigration executive order litigation. Standing will likely be Donald Trump’s primary opposition to the Emoluments Clause lawsuit. Standing is typically the basis when courts dismiss lawsuits brought by civic groups, like the Coalition for Safer Chicago Communities’ lawsuit against neighboring boroughs for their lax gun law enforcement.
Law students have the three requirements of standing drilled into their heads, usually in a form like, “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000).
But there’s a problem at the heart of the standing requirement: those three requirements for standing were made up out of thin air. For all the puffery about “Article III standing requirements,” there’s no basis for them anywhere in the Constitution. There’s no basis for them anywhere in the writings of the Framers, either. That lack of historical support poses a big problem for any lawyer or judge who claims to be a “textualist” or an “originalist.” Indeed, “standing” is one of the few issues that has created a fracture in the Republican appointees on the Supreme Court — a fracture that the Trump Administration might force them to confront.
The key case on “standing” as we understand it today is Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The majority opinion was authored by Justice Scalia, the patron saint of “textualism” and “originalism” proponents. Yet, as Michael Ramsey noted, “modern standing law has its conventional doctrinal statement in the 1992 decision Lujan v. Defenders of Wildlife (written by Justice Scalia). But Lujan doesn’t say anything about the historical/originalist foundations of standing.” Let’s do that historical / originalist analysis ourselves and see if it can sustain “standing” as courts use it today.
Start with the text of the Constitution, 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.

The “cases or controversies” clause is quite broad. It’s hard to imagine how it could be any more broad. In our modern era, we’ve spent so many years interpreting “cases or controversies” as referring to some small set of defined civil litigation that stays far away from politics or “political questions,” but that’s not how the Framers saw it.
At the federal convention, virtually every suggestion to expand the judicial power was granted. For example, it was agreed to unanimously “That the jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony.” The Committee on Detail eventually switched to the language quoted above, but there’s no indication they did so to limit the judicial power. In 1793, Thomas Jefferson wrote to John Jay, noting that President Washington “would be much relieved” if he could ask for the Supreme Court’s advice on the language of treaties — if that were done today, it would be considered a pure “advisory opinion” that was outside of the Court’s authority.
Then we move to, of course, Marbury v. Madison, in which Justice Marshall delivered this straw-man argument about the Supreme Court not interfering with the President’s cabinet:

1st. With respect to the officer to whom it would be directed. The intimate political relation subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to inter-meddle with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

Like so much of Marbury, this passage is beautifully written and substantively devoid of content. The essential conclusions are subject to huge caveats: the court will not inquire about how the executive performs duties “in which they have a discretion,” and the court will not answer questions “which are, by the constitution and laws, submitted to the executive.” But who decides if the Constitution submits a question to the executive’s discretion? The Supreme Court, of course.
In 1823, more than thirty years after the Constitution was ratified, James Madison wrote to Thomas Jefferson about “the difficulty in tracing the boundary between the General & State Govts,” and making clear that the judiciary was the “final resort,” and that Article III made clear the courts were the manner “for deciding in a peaceable & regular mode all cases arising in the course of [the Constitution’s] operation:”

Believing as I do that the General Convention regarded a provision within the Constitution for deciding in a peaceable & regular mode all cases arising in the course of its operation, as essential to an adequate System of Govt. that it intended the Authority vested in the Judicial Department as a final resort in relation to the States, for cases resulting to it in the exercise of its functions, (the concurrence of the Senate chosen by the State Legislatures, in appointing the Judges, and the oaths & official tenures of these, with the surveillance of public Opinion, being relied on as guarantying their impartiality); and that this intention is expressed by the articles declaring that the federal Constitution & laws shall be the supreme law of the land, and that the Judicial Power of the U. S. shall extend to all cases arising under them: Believing moreover that this was the prevailing view of the subject when the Constitution was adopted & put into execution; that it has so continued thro’ the long period which has elapsed; and that even at this time an appeal to a national decision would prove that no general change has taken place: thus believing I have never yielded my original opinion indicated in the “Federalist” No. 39 to the ingenious reasonings of Col: Taylor agst. this construction of the Constitution.

There can be little doubt Madison believed “the Judicial Power of the U.S. shall extend to all cases arising under [the federal Constitution & laws],” and that such was “the prevailing view of the subject when the Constitution was adopted & put into execution.” It’s hard to get stronger evidence of the “original intent” than that.
Nearly two centuries later in Lujan, Justice Scalia used a part of the above passage from Marbury as support for his claim that “[v]indicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.” Lujan at 576, emphasis in original. But that’s not what Marbury said at all; Marbury simply said that the Supreme Court didn’t have the power to force the Secretary of State (i.e., James Madison) to do something if the Constitution granted the Secretary the discretion to decide whether or not he would do it.
Other than Marbury, the only source that Justice Scalia cited from the first 133 years of the United States, was Federalist No. 48. Justice Scalia quotes Madison’s remarks that “the judiciary [is] described by landmarks still less uncertain” than the Executive or the Legislature. But Federalist No. 48 doesn’t say anything about limiting the judiciary; instead, the whole point of the essay was, in Madison’s words, “to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” That’s hardly an endorsement of Lujan’s strict “standing” requirement; if anything, Federalist No. 48 suggests that the judiciary must exert some “constitutional control” over the Executive and the Legislative branch. The same can be said for all of Madison’s other writings, too: he was a prominent advocate for judicial supremacy.
After that, Lujan jumps all the way to 1922, to cherry-pick a quote from Fairchild v. Hughes, 258 U.S. 126, a case that sought to invalidate the Nineteenth Amendment. Even then, the Fairchild case recognized plaintiff has “the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted.” That’s a far broader version of standing than the version described by Lujan.
Lujan then goes to 1923, citing Massachusetts v. Mellon, 262 U. S. 447. But Massachusetts didn’t establish the Lujan framework, either; it simply held that a challenge to the Maternity Act (which spent federal money to “reduce maternal and infant mortality and protect the health of mothers and infants”) didn’t harm the State of Massachusetts in any way at all. “[W]hat burden is imposed upon the States, unequally or otherwise? Certainly there is none, unless it be the burden of taxation, and that falls upon their inhabitants, who are within the taxing power of Congress as well as that of the States where they reside.” Id. at 482. After that, Lujan makes a quick jump to a 1937 case challenging the appointment of a Supreme Court Justice, and after that focuses entirely on cases from the 1970s.
As I’ve mentioned before on this blog, the problem with Justice Scalia’s “originalism” and “textualism” is that he never applied those concepts in a consistent fashion. Instead, he used whatever interpretive tool he could find to reach the result he wanted. The same is true of Lujan, the modern basis for “standing” arguments.
The end result is that we are now hobbled by a judicially-created “standing” doctrine with no support in the Constitution, and the doctrine has become a complete mess. In Kerry v. Din, 135 S. Ct. 2128 (2015), a case involving an American citizen whose spouse was denied a visa without any explanation, the Supreme Court failed to produce a majority opinion, with Justices Scalia, Roberts, and Thomas finding there was no standing, Justices Kennedy and Alito avoiding standing and finding no violation of due process, and Justices Ginsburg, Sotomayor, and Kagan finding both standing and a violation of due process. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), a case involving the Fair Credit Reporting Act, the Supreme Court reversed the Ninth Circuit’s holding that the plaintiff lacked standing, “[b]ecause the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization,” but the Supreme Court went out of its way to avoid actually deciding the issue of standing and instead remanded it for further consideration, noting that “We take no position as to whether the Ninth Circuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct.” Id. at 1550.
It’s time to either overhaul the standing requirements or abandon them entirely. The current standing requirements, like a “concrete and particularized” injury, have little to do with constitutional law. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. 137, regardless of the “concreteness” or “particularity” of a plaintiff’s injuries.