Arguments in favor of broad standing to challenge agency actions
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This page examines the main areas of argument from those who support a broad interpretation of the standing doctrine in order to make judicial review of agency actions more widely available.
In order for an affected party (an individual, group, or entity) to challenge an agency action in court, the party must first demonstrate standing to sue. In the context of administrative law, affected parties must obtain standing in order for a court to make a determination on what the affected party considers to be a harmful agency action.
Standing is a legal doctrine that determines whether a prospective plaintiff in a case has suffered a legal injury as the result of an action by the defendant. Plaintiffs who gain standing may obtain judicial review of their complaint. In the context of administrative law, plaintiffs seek standing in order to obtain judicial review of what they consider to be a harmful agency action.[1][2]
The breadth of standing is a topic of debate among administrative law scholars. While some scholars in the field argue that standing should be available to any plaintiff seeking judicial review of an agency action, others claim that standing should be limited to cases in which the prospective plaintiff has suffered a demonstrable legal injury as a result of the agency's action.
There are four main arguments in favor of a broad interpretation of the standing doctrine:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Standing is subjective
- Claim: The subjectivity of standing supports its broad interpretation
- Claim: Standing is subjective because it is a judicial construct aimed at a particular outcome
2. Argument: Broad standing is democratic
- Claim: Broad standing promotes democratic accountability
- Claim: Broad standing allows majorities to seek judicial review of injuries
- Claim: Broad standing allows citizens to challenge agency decisions not to act
3. Argument: Broad standing is constitutional
4. Argument: Broad standing has historical foundations
- Claim: English common law shows that a personal claim of injury was not required to receive standing
- Claim: Limits on standing developed recently and should be challenged
Argument: Standing is subjective
Supporters of a broad standing doctrine argue that standing is determined by individual judges. Standing, therefore, is viewed by this group as a subjective doctrine that is dependent on the judge's own interpretation of the injury in question. As such, any efforts to limit—or broaden—the scope of the standing doctrine are in vain because individual judges define its parameters. Since a judge may have a desired outcome in a case, supporters of a broad standing doctrine claim that standing can be crafted to suit the judge's personal preferences.
Claim: The subjectivity of standing supports its broad interpretation
Supporters of a broad standing doctrine argue that the doctrine's subjective nature makes it impossible to place bounds on its application. This group claims that although those who seek to limit the standing doctrine aim to narrow the scope of what can be considered an injury, the result remains subjective.
- Administrative law scholar Cass Sunstein provided the following example of the subjective nature of standing in his 1992 article "What's Standing After Lujan? Of Citizen Suits,'Injuries,' and Article III":
- “When an environmentalist complains about the destruction of a pristine area, he believes that the loss of that area is indeed an injury to him. When we deny these claims, we are making a judgment based not on any fact, but instead on an inquiry into what should count as a judicially cognizable injury. This judgment may be right, but it has little to do with facts or concreteness.”[3]
- Administrative law scholar Stephen I. Vladeck described this claim in his 2016 article "Standing After Scalia," arguing that “efforts (like Justice Scalia’s) to articulate objective understandings of, and approaches to, Article III standing—whether in the direction of justifying more permissible or more restrictive standing rules—may be little more than a fool’s errand, given the inherent subjectivity that will necessarily pervade how individual jurists assess and apply each of the requirements for standing that the Supreme Court has read into Article III.”[4]
Claim: Standing is subjective because it is a judicial construct aimed at a particular outcome
Supporters of a broad standing doctrine argue that standing is often crafted to fit the judge's preferred outcome in a case. According to this claim, efforts to limit or narrow the standing doctrine are futile since each application of standing is a unique construct of individual judges.
- Vladeck argued that attempts to narrow the standing doctrine have done little to change its subjective application, stating, "this punchline suggests that there isn’t likely to be an objectively discernable vision of Article III standing to which courts should aspire—and that, instead, we’re in for more of the same, with pro- or anti-standing holdings turning on hyperspecific factual or legal distinctions that are increasingly difficult to reconcile with overarching conceptions of the appropriate judicial role. Ultimately, then, Justice Scalia’s true legacy vis-à-vis Article III standing may be in having helped to prove, once and for all, that it is best understood as a jobs program for law professors—and is otherwise cover for subjective and outcome-oriented judicial assessments of which kinds of lawsuits should and should not go forward.”[4]
Argument: Broad standing is democratic
Supporters of a broad interpretation of the standing doctrine claim that wider access to standing supports democracy by allowing for more citizens to seek judicial review of agency actions. Since agency actors are not directly elected by the public, supporters of a broad standing doctrine argue that the wider interpretation furthers democratic accountability by casting a wider net in determining the types of injuries that qualify for standing to challenge agency actions.
Claim: Broad standing promotes democratic accountability
Supporters of a broad interpretation of the standing doctrine contend that the wider view of the doctrine supports democratic accountability. Democracy, they argue, is strengthened by the resulting increase in the types of injuries that qualify for standing, thus allowing more citizens to challenge agency activity through judicial review.
- Sunstein referred to a broad approach to the standing doctrine as "citizen standing." He claimed that citizen standing supports democratic accountability:
- “The democratic process has produced citizen standing, which it perceived as necessary to promote compliance with the democratic will as reflected in the governing statute."[3]
Claim: Broad standing allows majorities to seek judicial review of injuries
Since regulatory activity can affect both majority and minority groups, supporters of a broad interpretation of the standing doctrine claim that the wider view of the doctrine supports democracy by allowing members of both majority and minority groups affected by an agency action to seek redress through the courts. In contrast, efforts to limit judicial review to only minority groups, according to this claim, constrains democracy by preventing majority groups from likewise obtaining judicial review of agency actions when they perceive that an agency action has caused them an injury.
- Sunstein argued that majorities and minorities alike can be the objects of regulatory activity. As such, both groups should be able to obtain standing when they are adversely affected by agency actions:
- “Suppose we agreed that courts should not protect majority interests through administrative law. The result would be to jeopardize standing for many objects of regulation, not merely for beneficiaries. Often the objects of regulation are indeed majority interests. A regulation might, for example, affect a large number of companies at once, and in the process impose costs principally on consumers, which is to say on nearly all of us. Majorities are affected even when "objects" are at risk. But objects are not therefore to be deprived of standing, at least not without wreaking havoc on traditional administrative law. Indeed, the objects of regulation are not systematically more likely to be ‘majorities’ than the beneficiaries. If we were to build our theory of standing on majority status, we must rethink standing in important ways - but not in the ways recommended by Justice Scalia. The majority-minority distinction is too crude a basis for distinguishing beneficiaries from objects.”[3]
Claim: Broad standing allows citizens to challenge agency decisions not to act
Supporters of a broad interpretation of the standing doctrine argue that majority and minority groups alike should be able to obtain standing to obtain judicial review as a means to compel an agency to take an action that it otherwise had refrained from taking. In a process known as sue and settle, for example, certain federal laws (primarily environmental laws administered by the EPA) include citizen suit provisions that allow citizens to sue the administering agency when the agency fails to perform a statutorily required act. Supporters of a broad standing doctrine argue that the wider view of the doctrine results in increased citizen participation in agency oversight through judicial review of agency action. In the cases of majority complaints that seek to compel an agency to issue or enforce a statutorily required rule, supporters of the broad interpretation of the standing doctrine claim that the wider availability of judicial review strengthens democracy by helping citizens hold agencies accountable for abdicating their responsibility to implement or enforce legally required rules.
- Sunstein argued that grants of standing to majority groups help prevent agencies from implementing the law in a manner that conflicts with the intent of Congress:
- “If agency enforcement beyond that intended by Congress is not ‘a good thing,’ even where the agency responds to political pressures, it is not ‘a good thing’ where an agency undertakes a pattern of enforcement that violates congressional will through abdication or failure to act. Asymmetry on this point would simply translate judicial antipathy to regulation into administrative law. The foreclosure of standing cannot plausibly be defended as a means of allowing the bureaucracy to implement the law in a manner that conflicts with the governing statute.”[3]
Argument: Broad standing is constitutional
Supporters of a broad interpretation of the standing doctrine argue that the Constitution does not place any limits on standing. Proposals to limit standing, according to this claim, are the result of 20th-century jurisprudence that falsely attributes common law and laissez-fair principles to the Constitution and seeks to oppose regulatory institutions.
Claim: The Constitution does not place limits on standing
Supporters of a broad interpretation of the standing doctrine define standing as a legal grant of permission to bring legal action. The Constitution, according to this claim, doesn't place limits on who can receive standing. Supporters of a broad view of the standing doctrine look to historical precedents to support their view. They claim that the first objections to the standing of a private citizen to enforce a public right did not occur until 1897 and that the idea of standing as a legal doctrine did not exist before the 1923 U.S. Supreme Court decision in Frothingham v. Mellon.
- Sunstein argued that there is no historical support for the view that the Constitution limits standing:
- “[E]arly English and American practices give no support to the view that the Constitution limits Congress' power to create standing. The relevant practices suggest not that everyone has standing, nor that Article III allows standing for all injuries, but instead something far simpler and less exotic: people have standing if the law has granted them a right to bring suit. There is no authority to the contrary before the twentieth century, and, indeed, I think that there is no such authority before World War II.”[3]
- Sunstein described the idea of a constitutional foundation for standing as a discredited view:
- “The private law model of standing is based on understandings that are not only without constitutional foundation, but that seemed to be foreclosed by democratic judgments following the New Deal. Indeed, that model seemed to draw upon the discredited view that common law and laissez-faire principles are part of the Constitution, to be deployed by unelected judges as the vehicle for the definition of a system of public law sharply opposed to modem regulatory institutions.”[3]
- Law professor Raoul Berger articulated this claim in his 1969 article "Standing to Sue in Public Actions: Is it a Constitutional Requirement?" Berger argued that the standing doctrine is a judicial construct because the term "standing" is not included in the text of the Constitution:
- “Unlike ‘case or controversy,’ which can summon the express terms of Article III, ‘standing’ is not mentioned in the Constitution or the records of the several conventions. It is a judicial construct pure and simple which, in its present sophisticated form, is of relatively recent origin. Professor Jaffe encountered ‘no case before 1807 in which the standing of the plaintiff is mooted,’ and found that objections to the standing of a private individual to enforce a ‘public right’ were first squarely presented in 1897.”[5]
- Berger further argued that even if a constitutional footing for the standing doctrine could be found, it wouldn't change the fact that the doctrine is still a recent development:
- “In any case ‘standing’ was neither a term of art nor a familiar doctrine at the time the Constitution was adopted. Although it has been explained as a description of ‘the constitutional limitation on the jurisdiction of the Court to 'cases' and 'controversies,' it apparently entered our law via Frothingham in 1923.”[5]
Argument: Broad standing has historical foundations
Supporters of a broad interpretation of the standing doctrine argue that the limited view of standing is drawn from English common law and has no foundation in American constitutional law. Supporters also contend that the limited view of standing should be challenged because it is drawn from a recent legal interpretation in the 1923 U.S. Supreme Court case Frothingham v. Mellon.
Claim: English common law shows that a personal claim of injury was not required to receive standing
Supporters of a broad interpretation of the standing doctrine claim that those who seek limits on standing rely on an incorrect interpretation of English history. Under English common law, according to this claim, a personal claim of injury was not required to receive standing. Therefore, supporters of a broad view of the standing doctrine argue that those who seek to limit standing to personal injury claims are relying on a questionable interpretation of English history and the separation of powers.
- Berger denied the English common law roots of a limited view of the standing doctrine:
- “In seeking to clarify ‘’Frothingham’’ in ‘’Flast v. Cohen’’, moreover, the Court, in my opinion, has further confused analysis by extracting from the separation of powers and advisory opinion doctrines implicit policies embedded in Article III with which to bolster dubious implications drawn from the ‘case or controversy’ phrase. A first step towards clarification would be to clear the ground of unhistorical notions of constitutional restrictions, to free consideration of the perplexing and wide-ranging issues of policy that cluster about the problem of standing from the constriction of fancied constitutional bonds. I propose to show that the English practice on which Justice Frankfurter relied did not in fact demand injury to a personal interest as a prerequisite to attacks on jurisdictional excesses, and that neither the separation of powers nor advisory opinion doctrines as originally envisaged require insistence on a personal stake as the basic element of standing to make such challenges."[5]
Claim: Limits on standing developed recently and should be challenged
Supporters of a broad interpretation of the standing doctrine claim that a limited view of standing is a recent legal development from the 1923 case Frothingham v. Mellon that should be challenged. Moreover, the U.S. Supreme Court, according to this claim, misinterpreted the Constitution in the 1992 case Lujan v. Defenders of Wildlife by holding that Article III forbids Congress from granting standing to citizens to bring suit if they have not suffered a demonstrable injury.
- Sunstein claimed that the limited view of standing espoused by the majority in the Lujan case is a judicial construct that should be challenged:
- “Lujan's invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to ‘citizens’ to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William O. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges who are sincerely committed to the original understanding of the Constitution and to judicial restraint. Nor should it be accepted by judges who have different approaches to constitutional interpretation."[3]
See also
- Taxonomy of arguments about due process and procedural rights in the context of the administrative state
- Procedural due process rights (administrative state)
External links
Footnotes
- ↑ Legal Dictionary, "Standing," accessed June 29, 2020
- ↑ Quimbee, "Standing," accessed June 29, 2020
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 Michigan Law Review, "What's Standing After Lujan? Of Citizen Suits, 'Injuries,' and Article III," 1992
- ↑ 4.0 4.1 George Mason University, "Standing After Scalia," 2016
- ↑ 5.0 5.1 5.2 The Yale Law Journal, "Standing to Sue in Public Actions: Is it a Constitutional Requirement?" 1969
