Standing Doctrine and the Supreme Court

Today the Harvard Law Review has published its issue on the Supreme Court's October 2022 Term, and Will Baude and I have a case comment on Biden v. Nebraska and more generally on standing doctrine in the term. The piece is called Proper Parties, Proper Relief.

HLR case comments are about the case, but they're also about the big ideas behind the case, and one exemplar of that is Michael McConnell's famous case comment from 1997: Institutions and Interpretation: A Critique of City of Boerne v. Flores.

So in thinking about what the piece covers, consider three concentric circles. The narrowest is Biden v. Nebraska: was there standing for the states to sue to stop the Biden Administration's (first) student-loan relief plan? A second circle is broader: what are the circumstances in which a state is able, or should be able, to sue the national government? A third circle is broader still, and it's the first principles of standing doctrine: What is the core of standing? What is it good for? What exactly is the point?

Proper Parties, Proper Relief tackles all these questions, and along the way it also discusses other major cases from the October 2022 Term, including United States v. Texas and Haaland v. Brackeen. Together these cases suggest important shifts in standing doctrine, especially state standing.

Part I, called "Basic Principles," offers an account of standing doctrine that emphasizes two main ideas--proper parties and proper relief—and it connects both of these to the judicial role.

Part II, called "The Massachusetts v. EPA Era and the Shifting Judicial Role," analyzes briefly and critically the meteoric rise of state standing (which is due to multiple factors, not just Massachusetts v. EPA).

Part III, called "End of an Era? Two Cheers for the Supreme Court's Course Correction," works through in detail the Supreme Court's standing cases from the October 2022 Term, especially showing how they have narrowed—perhaps even gutted—the expansive readings of Massachusetts v. EPA that have become commonplace in the lower federal courts.

Finally, Part IV, called "The Enduring Choice Between Two Approaches to Standing," distinguishes between an external concept of standing, in which it is simply a hurdle for a judge to get over before getting on with the real work; and internal concept of standing, in which it is part of the role morality of being a judge.

The piece concludes with this paragraph:

Yet as courts have come to govern so much of our political life, and as so many of us have come to expect them to do so, standing doctrine and its corresponding view of judicial power will always be under pressure. Unconstrained by such niceties, there is so much more a judge could do! This Term suggests that the Court is trying to nudge the judiciary toward the classical view of the judicial role, or at least toward the circa 2005 view of the judicial role, and if so that is a good development. But it will not be the end of the temptation. Constant pressure requires constant vigilance.

Comments

[damikesc]

I'd argue, personally, any taxpayer should have standing on any spending bill passed by Congress.

"Nothing will get done then" would be a major feature and not at all a bug.

[Noscitur a sociis]

Right, why would we want the government to do anything?

[Lawification]

We should all just live under the glorious, absolute, and perpetual rule of damikesc.

[Will Baude]

But standing to seek what kind of relief? As we write:

Consider the 1923 case of Frothingham v. Mellon, where the Court rejected a challenge to the Maternity Act on the grounds that an individual plaintiff had no standing to sue. The case is often shorthanded as memorializing a rule against “taxpayer standing,” but that is something of a misnomer. Taxpayers do and have always had standing to challenge the taxes they pay. (Think of the property owner who challenged the tax in Hylton v. United States, or the manufacturer who challenged the tax in Bailey v. Drexel Furniture Co.) Harriet Frothingham’s problem was that she had no legal objection to the taxes she paid, only to the way the government subsequently spent the money. And this is a problem, to use modern doctrinal terms, of redressability. If the taxes were lawfully collected from Mrs. Frothingham, once they entered the federal treasury she lost any legal claim to them. And if she were somehow to obtain an injunction against the government’s spending under the Maternity Act, that remedy would not benefit her as a taxpayer. The government would not need to refund the money; it could simply spend it on something else.

[Scattershot]

I have been following the standing issues with interest over the last few years. Most of it makes sense (I agree with the concepts of proper parties and proper relief), but I do have a question. Say the executive branch makes a spending decision that is obviously not authorized by an act of congress, which results in some people getting additional money, but no one receiving less than Congress authorized. Who has standing to sue to prevent this? Various cases seem to have said that individual taxpayers don’t and the states don’t. Does Congress? How about a single member of Congress or the minority party in one of the houses? It would seem that the latter would be important as the authorizing act may have come from a past Congress or been the result of a negotiation between the parties.

[Lawification]

The proper remedy is for Congress to impeach the official or the President for failing to follow the law.

Also, "obviously not authorized." Says who?

I'm not sure it is always better, given the availability of impeachment, that an unelected judge decides these questions, though they are legal questions courts routinely answer, rather than the elected Executive. Marberry v. Madison is engrained in our thinking about which branch decides what the "law" is. But the Constitution itself, for all the reasons explained in this article, limits the judiciary's reach to "cases and controversies." For everything else, someone else decides what the law is, Justice's Marshall's sweeping pronouncements notwithstanding.

[Scattershot]

Thank you for the reply. I hadn't considered impeachment as the proper remedy in this case, but given I set the problem as a hypothetical, clear cut and obvious violation - it probably is. Real life would be murkier, of course. I'm still interested if any Congress members have standing, either as individuals or houses, in cases like these....