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The standing problem in Zivotofsky, revisited


Teaching Zivotofsky yesterday I found myself wondering: why haven't any members of the Court questioned Zivotofsky's standing to sue? Zivotofsky is of course the Jersualem passport case pending before the Supreme Court, which is being asked to decide whether Section 214(d) of the Foreign Relations Authorization Act is constitutional. But has Zivotofsky suffered the"injury in fact" required by the Court's standing doctrine, and thus required for the Court to decide the case?

The district court initially said "no." It took the Court's decision in Lujan (and now one could add Summers) to say that a violation of a statutory right isn't adequate for standing. And it didn't think that there was any other concrete injury outside of the legal injury. The D.C. Circuit disagreed with the first point, concluding that in general violations of statutory rights do create standing.

Co-blogger Eugene K. and Steve Vladeck went back and forth about this earlier this year. Eugene argued that the statute "does not create a 'right'" and therefore that it can't support standing. Steve responded that this objection really goes to the existence of a cause of action; the statute does create a right.

I'm slow to the party, but I'm wondering about something slightly more basic. What about the district court's objection, that even if the statute does create a right, that right isn't a cognizable injury under Article III standing doctrine? In his post, Steve had written "I don't think there's any question, as I've explained in the surveillance context, that Congress may create non-common-law rights as a general proposition, and then confer standing upon a wide array of private individuals who, through an appropriate cause of action, may enforce them."

And while I'm sympathetic to Steve's views here, it seems to me that some members of the Court have questioned that general proposition. This was discussed most fervently during the oral argument in First American Financial v. Edwards. Here's Chief Justice Roberts:

Can I—I'm sorry to interrupt you, and I want to pause on that question. You said violation of a statute is injury-in-fact. I would have thought that would be called injury-in-law. And when we say, as all our standing cases have, is that what is required is injury-in-fact, I understand that to be in contradistinction to injury-in-law. And when you tell me all that you've got or all that you want to plead is violation of the statute, that doesn't sound like injury-in-fact.

And again:

You say so long as the harm is a violation of the law, a legally protected interest. Our standing cases always say injury-in-fact as opposed to injury-in-law. And yet, you're saying if you violate the law, you have sufficient injury.

Now First American Financial was eventually dismissed. The Court has called for the views of the SG in a new case that looks to me like it might raise the question again, Spokeo v. Robins, but it seems to remain an open question whether the injury-in-law skepticism will prevail. In any event: for those Justices who are skeptical, and who don't accept Steve's limited reading of Lujan, shouldn't Zivotofsky's standing actually be in serious doubt?

The standing issue doesn't seem to have been raised in the principal briefs, although I did find this amicus brief which raises the issues (and relies on Eugene K's post too). But because standing is jurisdictional, each Justice is supposed to satisfy himself or herself that it exists before they go on to consider the merits. It seems to me that each Justice who doubts standing in First American Financial or Spokeo ought to doubt standing here too. And if not, at a minimum they ought to explain why not.

On the other hand, if recent practice is any guide, the Court will just ignore the issue.