The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Court Should Cast Doubt On Havens Realty "Diversion" Standing and Establishment Clause "Offended Observer" Standing
If Alliance for Hippocratic Medicine lacks standing, so should progressive groups.
On Tuesday, the Supreme Court heard oral argument in FDA v. Alliance Hippocratic Medicine, the mifepristone case. Much of the argument focused on whether AHM had standing to challenge the FDA's actions. From my vantage point, it looks like the plaintiffs will lose. Indeed, the writing has been on the wall since the Court granted a stay of the Fifth Circuit's decision back in April 2023. The question isn't whether AHM will lose; the question is how. I would humbly submit that the Court could take this opportunity to clean up several aberrations in standing law.
First, the Court should claw back so called "diversion of resource" standing based on Haven's Realty. As this theory has been interpreted by some lower courts, an organization can claim Article III standing simply by claiming that a government policy forces the organization to divert resources. In other words, the organization would usually spend their resources on X, but because of some state action, the organization now spends their resources to respond to the state action. That injury seems entirely self-inflicted, and is at odds with decades of standing law. Yet some lower courts accepted this theory in legal challenges to Trump policies. I had hoped that the Supreme Court could address Havens Realty in Acheson, but that case fizzled out on mootness grounds.
During oral argument in AHM, several Justices addressed Havens Realty standing. Earlier in the argument, Justice Barrett said that AHM's injury "sound[s] in the Havens Realty associational standing." Barrett added that these are the sorts of "allegations we see by immigration advocacy groups." They claim a "diversion of resources" in the form of "increased expenses that result from the complications of having to address" the state action. Barrett asked Solicitor General Prleogar to distinguish "diversion of resources" from Havens Realty.
Prelogar explained that in Havens, the civil rights group had a "direct and concrete demonstrable injury" apart from the diversion of resources. Specifically, the organization "organization had a contract to provide low-income housing" and "the racial steering practices directly interfered" the "contractual obligations." Prelogar said Havens Realty did not "bless[] a theory of standing that would allow an organization to assert a setback to its abstract social interests." The Solicitor General acknowledged that "in the immigration context," some "lower courts in particular have seemed to read Havens to endorse far broader theories of standing." Prelogar said "we would welcome an eventual clarification from this Court on organizational standing."
Erin Hawley, representing AHM, said that Havens Realty was "on all fours with this case." Hawley said there "was an impairment of the organization's mission" and "an expenditure of resources." That impairment, Hawley said, is sufficient for an injury-in-fact. Justice Thomas said that reading of Havens makes standing "easy to manufacture." The organization would just have to "us[e] resources to advocate their position in court" and say those expenditures "now causes an injury." Hawley acknowledged that "the lower courts have cabined Havens to say where you have sort of prelude to litigation types of activities." It is not enough to have a diversion of resources. Hawley said AHM's actions were "neither a prelude to litigation, nor would they have occurred but for FDA's unlawful conduct in this case." Justice Thomas did not return to the issue.
Justice Barrett turned to Havens with Hawley. She asked "what additional costs [AHM] might have incurred or how [AHM's] resources were diverted in a way that would satisfy Havens"? Barrett pointed to AHM's conducting and analyzing studies. Barrett replied, "Is that it?" Barrett, and Thomas, did not seem persuaded.
During the Solicitor General's rebuttal, Prelogar said that "clarify" that Havens Realty does not permit "every organization in this country . . . to challenge any federal policy they dislike." I suspect progressive lawyers who are keen to challenge future Trump immigration policies were gritting their teeth when Prelogar made this comment.
Second, the Court can cast some doubt on so-called "offended observer standing" under the Establishment Clause. I have long questioned how someone can claim standing to challenge a policy on Establishment Clause grounds based simply on being offended. Justice Gorsuch raised this issue in his American Legion concurrence. And Gorsuch pushed SG Prelogar on this issue. Prelogar attempted to deflect, and "would put the Establishment Clause precedent and First Amendment precedent generally in its own bucket." Gorsuch pushed back. "Standing is standing." There is no First Amendment exception to Article III.
Gorsuch "was looking for some guidance" of how to "stitch it all together." Prelogar acknowledged that an "offense or distress type of injury" would "likely go far too much in the direction of allowing Article III courts to weigh in based on generalized grievances." But she said the Court has found an "cognizable" injury where "there is a kind of direct governmental action producing that type of injury." I'm not sure that distinction works. Article III is not satisfies because some "direct governmental action" offends a person. There has to be an actual, concrete injury in fact. Cases like Van Orden and American Legion are inconsistent with decades of standing doctrine.
Ultimately, there are probably more than enough votes to reverse the Fifth Circuit. It is tempting to write a 9-0 decision that finds a way to rule against AHM, without speaking to these broader issues. But it would be helpful if the Court, or at least a plurality of Justices, clamps down on the other standing theories at play in this case. There is some degree of unilateral disarmament when conservative litigants are thrown out of court but progressive groups can skate in under the radar. The Court can reject the broad reading of Havens Realty, and hold that mere emotional distress is insufficient to establish a concrete injury.
