Arguments in favor of limited standing to challenge agency actions
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This page examines the main areas of argument from those who support limits on the standing doctrine. A limited interpretation of the standing doctrine would narrow the class of individuals who could seek judicial review of agency actions.
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 limited interpretation of the standing doctrine:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Limits on standing protect minority rights
- Claim: Limits on standing allow the judiciary to protect the rights of the minority
- Claim: The protection of majority rights should be the responsibility of the political branches, not the courts
- Claim: Limits on standing reserve judicial review for individuals with specific injuries rather than general concerns
2. Argument: Limits on standing support the separation of powers
- Claim: Limits on standing prevent the transfer of the executive power to manage the administrative state to the judiciary
- Claim: Limits on standing prevent judicial overreach
- Claim: Limits on standing safeguard the executive's enforcement authority
3. Argument: Limits on standing promote agency efficiency
4. Argument: Limits on standing strengthen political accountability
Argument: Limits on standing protect minority rights
Supporters of limits on the standing doctrine argue that narrow standing allows the judiciary to protect the rights of minority groups rather than serve the interests of the majority. The political branches, according to this argument, are made up of the people's political representatives and, therefore, are the appropriate government bodies to safeguard majority interests. Limits on the standing doctrine, supporters claim, also reserve judicial resources for those who have experienced a demonstrable injury from an agency action and prevent what they consider to be the misuse of judicial resources by those who have a general concern about an agency's decisionmaking.
Claim: Limits on standing allow the judiciary to protect the rights of the minority
Supporters of limits on the standing doctrine argue that since the judiciary is removed from direct accountability to the electorate, it is not positioned to serve majority interests without imposing its own political prejudices. Federal judges are appointed rather than elected. The people's elected representatives in Congress and the White House, according to this claim, are more responsive to the interests of majority voters. Supporters of limits on standing, therefore, argue that the judiciary is structured to protect the interests of the individual (the minority) against the people (the majority).
- Justice Antonin Scalia claimed in his 1983 article "The Doctrine of Standing as an Essential Element of the Separation of Powers" that judges are ill-suited to protect majority interests in part because they are unaccountable to the electorate:
- “But that is the ultimate question: Even if the doctrine of standing was once meant to restrict judges ‘solely, to decide on the rights of individuals,’ what is wrong with having them protect the rights of the majority as well? They've done so well at the one, why not promote them to the other? The answer is that there is no reason to believe they will be any good at it. In fact, they have in a way been specifically designed to be bad at it—selected from the aristocracy of the highly educated, instructed to be governed by a body of knowledge that values abstract principle above concrete result, and (just in case any connection with the man in the street might subsist) removed from all accountability to the electorate. That is just perfect for a body that is supposed to protect the individual against the people; it is just terrible (unless you are a monarchist) for a group that is supposed to decide what is good for the people. Where the courts, in the supposed interest of all the people, do enforce upon the executive branch adherence to legislative policies that the political process itself would not enforce, they are likely (despite the best of intentions) to be enforcing the political prejudices of their own class.”[3]
Claim: The protection of majority rights should be the responsibility of the political branches, not the courts
Supporters of limits on the standing doctrine argue that the responsibility of the judiciary is to protect the rights of the minority while the responsibilities of Congress and the executive are to serve the interest of the majority. In cases where an individual subject to a law seeks to challenge that law, according to this claim, standing is always granted.
- Scalia argued that limits on the standing doctrine support a functional relationship between the political branches by restraining the power of the judiciary:
- “There is, I think, a functional relationship, which can best be described by saying that the law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself. Thus, when an individual who is the very object of a law's requirement or prohibition seeks to challenge it, he always has standing. That is the classic case of the law bearing down upon the individual himself, and the court will not pause to inquire whether the grievance is a "generalized" one.”[3]
- Scalia claimed that an increasing number of cases are not individuals challenging the law or an agency action. Rather, according to Scalia, plaintiffs have increasingly brought forward generalized complaints alleging that they are harmed by an agency's unlawful failure to impose a requirement on someone else:
- “Contrast that classic form of court challenge with the increasingly frequent administrative law cases in which the plaintiff is complaining of an agency's unlawful failure to impose a requirement or prohibition upon someone else." Such a failure harms the plaintiff, by depriving him, as a citizen, of governmental acts which the Constitution and laws require."[3]
- Scalia further claimed that plaintiffs acting in majoritarian interests do not meet the standing threshold because their generalized grievances should instead be addressed through democratic debate:
- "But that harm alone is, so to speak, a majoritarian one. The plaintiff may care more about it; he may be a more ardent proponent of constitutional regularity or of the necessity of the governmental act that has been wrongfully omitted. But that does not establish that he has been harmed distinctively-only that he assesses the harm as more grave, which is a fair subject for democratic debate in which he may persuade the rest of us. Since our readiness to be persuaded is no less than his own (we are harmed just as much) there is no reason to remove the matter from the political process and place it in the courts. Unless the plaintiff can show some respect in which he is harmed more than the rest of us (for example, he is a worker in the particular plant where the Occupational Safety and Health Administration has wrongfully waived legal safety requirements) he has not established any basis for concern that the majority is suppressing or ignoring the rights of a minority that wants protection, and thus has not established the prerequisite for judicial intervention.”[3]
Claim: Limits on standing reserve judicial review for individuals with specific injuries rather than general concerns
Supporters of limits on the standing doctrine claim that majority groups can seek standing in order to challenge agency decisions that cause general concern, rather than a specific personal injury. For this reason, supporters of limits on standing contend that limits on standing reserve judicial resources for individuals with specific injuries, rather than for those with general concerns about issues that would be better addressed through the democratic process.
- Administrative law scholar Jerett Yan described this claim in his 2012 article "Standing as a Limitation on Judicial Review of Agency Action." Yan supported limits on the standing doctrine as an interpretation that reserves judicial resources for individuals with specific injuries:
- "Requiring potential plaintiffs to demonstrate an injury-in-fact that is more distinctive than that affecting the general populace serves this purpose by limiting the availability of judicial review to those individuals with more than a general concern about an issue."[4]
Argument: Limits on standing support the separation of powers
Supporters of limits on the standing doctrine claim that such limits serve to safeguard the Constitution's separation of powers. Broad interpretations of the standing doctrine that grant standing to individuals who seek to challenge agency actions, according to this argument, transfer the president's power to oversee the administrative state to the judicial branch in violation of the separation of powers.
Claim: Limits on standing prevent the transfer of the executive power to manage the administrative state to the judiciary
Supporters of limits on the standing doctrine argue that lawsuits seeking to address agency actions allow the judiciary to manage the administrative state, thereby usurping the executive's power. Limits on the standing doctrine, according to this claim, aim to prevent the judiciary from overstepping its authority into areas of executive control.
- Yan argued that limits on the standing doctrine serve as a check to prevent the judiciary from overstepping its authority:
- "The causation and injury-in-fact requirements strike the balance between the executive as executor of the law and the judiciary as defender of individual rights by defining what harms are sufficient to merit judicial curtailment of the executive’s prerogative to manage the administrative state."[4]
Claim: Limits on standing prevent judicial overreach
Supporters of limits on the standing doctrine claim that a restrained doctrine supports the separation of powers by serving as a check on judicial overreach. Limited standing, according to this claim, prevents judges from acting as legislative policymakers and prevents the judiciary from exercising the executive power to manage the administrative state. Limits on the standing doctrine, supporters claim, funnel advocacy efforts toward the political process. According to supporters, limits on standing prevent courts from ruling on broad questions of public significance that are better resolved by the people's representatives in the political branches.
- Scalia claimed that a lack of limits on standing would result in the overjudicialization of government:
- “My thesis is that the judicial doctrine of standing is a crucial and inseparable element of that principle [separation of powers], whose disregard will inevitably produce—as it has during the past few decades—an overjudicialization of the processes of self-governance.”[3]
- Yan pointed to the potential for a broad interpretation of the standing doctrine to allow the judiciary to encroach on legislative power:
- “Requiring plaintiffs to prove standing maintains the separation of powers by ensuring that the judiciary acts only as an arbiter of ‘specifically identifiable violation[s] of the law’ and does not encroach on the more legislative function of policymaking."[4]
- Yan argued that limits on standing funnel advocacy efforts to the people's representatives in the political branches:
- “[L]imitations on the availability of judicial review prevent the judiciary from taking an overly active role in policymaking and channel advocacy efforts into the political process.”[4]
- Yan further argued that the elected political branches are more suited than the judiciary to address broad, abstract questions that affect the general public:
- “Another function of standing limitations is to prevent courts from being ‘called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions.’"[4]
- Yan claimed that limits on standing prevent unelected judges from exercising executive or legislative power that should be reserved for the people's elected representatives:
- “Standing is a constitutional doctrine, rooted in Article III’s limitation of the courts’ purview to ‘cases’ and ‘controversies,’ that inquires ‘whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.’ One of the functions of standing is to maintain the separation of powers. While the power of judicial review enables the judiciary to check gratuitous exercises of power by the legislature and executive, standing ensures that the judiciary’s use of this power does not intrude on the prerogatives of the other branches. Thus, limiting the power of the judiciary also ensures that, to the extent possible, decisions are made by the accountable political branches rather than the unaccountable judiciary.”[4]
Claim: Limits on standing safeguard the executive's enforcement authority
Supporters of limits on the standing doctrine claim that a broad view of standing undermines the executive branch's enforcement authority in violation of the separation of powers. The 2011 U.S. Supreme Court case Barnum Timber Co. v. U.S. Environmental Protection Agency, according to this claim, broadened standing to allow for judicial review of the executive's enforcement decisions, which supporters of limited standing claim served to encroach on the executive's authority to enforce the law.
- Yan argued that the Barnum decision allowed the judicial branch to usurp the executive branch's power to enforce the law, which prevents the electorate from holding the executive accountable for his enforcement actions:
- “While courts have traditionally been cautious of intervening in agency enforcement decisions, the Ninth Circuit’s 2011 decision in Barnum Timber Co. v. U.S. Environmental Protection Agency ("Barnum") marks a departure from that trend. In holding that a landowner had standing to challenge the Environmental Protection Agency’s (EPA) approval of the California State Water Resources Control Board’s (SWRCB) allegedly arbitrary listing of a creek on Barnum’s property as impaired under the Clean Water Act (CWA), the court dramatically expanded its authority to question the executive’s enforcement decisions. While judicial oversight of agency action is appropriate in certain circumstances, the extent of judicial interference that Barnum permits can undermine the executive’s ability to enforce the law and prevent the executive from being held accountable for its enforcement decisions.”[4]
Argument: Limits on standing promote agency efficiency
Supporters of limits on the standing doctrine argue that the threat of litigation that would result from a broad interpretation of the doctrine could reduce agency efficiency. Moreover, supporters of limits on standing claim that judges are not agency experts and, therefore, are not suited to weigh in on complex agency decisionmaking.
- Yan claimed that a rising threat of litigation from broad grants of standing would result in agency inefficiency. He further argued that judges should not attempt to manage the administrative state because they are generalists with no particular subject-matter expertise:
- “In addition to constraining the executive’s authority over resource allocation, judicial involvement in managing the administrative state can reduce overall agency efficiency. The threat of litigation can incentivize agencies to institute complex formal procedures that will insulate their decisions against judicial challenges, deter agencies from taking action, and undermine agencies’ bargaining positions with regulated entities that know that they can subsequently challenge unfavorable decisions in court. The judiciary is ill suited to make the types of decisions necessary to manage the administrative state. Officers appointed to lead agencies are typically experts in their fields, while judges are generalists with no particular expertise in public administration or the areas in which agencies regulate. As a result, judges are likely to be less competent in balancing the myriad factors that go into enforcement decisions. Even if judges had comparable expertise to agency administrators, courtrooms are a much more constrained forum for determining how to allocate agency resources; judges lack the time to hear all of the evidence, and the adversary system is poorly designed to handle polycentric questions regarding resource allocation. As a result, judges dictating agency action via private rights of initiation are more likely to make poor managerial and policy choices than expert agency administrators.”[4]
Argument: Limits on standing strengthen political accountability
Supporters of a limited interpretation of the standing doctrine claim that limits on standing strengthen political accountability by providing the public with clear distinctions between executive and judicial branch responsibilities.
Claim: Limits on standing promote political accountability by preventing judicial management of the administrative state
Supporters of limits on the standing doctrine argue that a broad interpretation of standing reduces political accountability because it confuses public understanding of whether the executive or the judiciary is responsible for an agency action.
- Yan argued that the judicial branch should not attempt to manage the administrative state because their management efforts will be attributed to the executive, who is elected by the people:
- “While the effects of individual decisions are nearly impossible to measure, increased judicial involvement in the management of the administrative state could, on the aggregate, reach a level where it weakens the ability of Congress and the public to hold the executive accountable for its regulatory agenda by obscuring the agenda’s nature and its effects. The more actions the judiciary requires the executive to take in pursuing a judicially compelled regulatory agenda, the fewer resources the executive retains to pursue its own regulatory agenda. Unless the public carefully tracks which decisions are made by the executive and which are made by the judiciary, the executive could be perceived as solely responsible for actions of the administrative state taken during that particular executive’s term, regardless of whether the executive wanted to pursue them. Thus, when it comes time for the public to evaluate the performance of the executive at the polls, this lack of transparency could result in the executive being blamed for poor judicial administration of an agency or, conversely, credited for the results of effective judicial administration.”[4]
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 Suffolk University Law Review, "The Doctrine of Standing as an Essential Element of the Separation of Powers," accessed September 15, 2020
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 Ecology Law Quarterly, "Standing as a Limitation on Judicial Review of Agency Action," 2012 Cite error: Invalid
<ref>tag; name "yan" defined multiple times with different content
