Article III -- Table of Contents

Standing to Challenge Nonconstitutional Governmental Action. Standing in this sense has

a constitutional content to the degree that Article III requires a case or controversy,
necessitating a litigant who has sustained or will sustain an injury so that he will be moved to
present the issue in an adversary context and in a form historically viewed as capable of judicial
resolution.395 Liberalization of the law of standing in this field has been notable. The old law
required that in order to sue to contest the lawfulness of agency administrative action, one must
have suffered a legal wrong, that is, the right invaded must be a legal right,396 requiring
some resolution of the merits preliminarily. An injuryinfact was insufficient.
A legal right could be established in one of two ways. It could be a commonlaw right, such
that if the injury were administered by a private party, one could sue on it;397 or it could be a
right created by the Constitution or a statute.398 The statutory right[p.669]most relied on was the
judicial review section of the Administrative Procedure Act, which provided that [a] person
suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial review thereof.399 Early
decisions under this statute interpreted the language as adopting the legal interest and legal
wrong standard then prevailing as constitutional requirements of standing, which generally had
the effect of limiting the type of injury cognizable in federal court to economic ones.400
More recently, however, the Court promulgated a twopronged standing test: if the litigant (1)
has suffered injuryinfact and if he (2) shows that the interest he seeks to protect is arguably
within the zone of interests to be protected or regulated by the statutory guarantee in question, he
has standing.401 Of even greater importance was the expansion of the nature of the injury
required beyond economic injury, which followed logically to some extent from the revision of
the standard, to encompass aesthetic, conservational, and recreational interests as well.402
Aesthetic and environmental wellbeing, like economic wellbeing, are important ingredients
of the quality of life in our society, and the fact that particular environmental interests are shared
by the many rather than the few does not make them less deserving of legal
protection[p.670]through the judicial process.403 Thus, plaintiffs, who had pleaded that they
used the natural resources of the Washington area, that rail freight rates would deter the recycling
of used goods, and that their use of natural resources would be disturbed by the adverse
environmental impact caused by the nonuse of recyclable goods, had standing as persons
aggrieved to challenge the rates set. Neither the large numbers of persons allegedly injured nor
the indirect and less perceptible harm to the environment was justification to deny standing. The
Court granted that the plaintiffs might never be able to establish the attenuated line of
causation from rate setting to injury, but that was a matter for proof at trial, whereas in the
instant case the Court dealt only with the pleadings.404
Much debate has occurred in recent years with respect to the validity of citizen suit provisions
in the environmental laws, especially in light of the Courts retrenchment in constitutional
standing cases. The Court in insisting on injury in fact as well as causation and redressability has
curbed access to citizen suits,405 but that Congress may expansively confer substantial degrees
of standing through statutory creations of interests remains true.

The Requirement of a Real Interest

Almost inseparable from the requirements of adverse parties and substantial enough interests to
confer standing is the requirement that a real issue be presented, as contrasted with speculative,
abstract, hypothetical, or moot issues. It has long been the Courts considered practice not to
decide abstract, hypothetical or contingent questions.406 A party cannot maintain a suit for a
mere declaration in the air.407 In Texas v. ICC,408 the State attempted to enjoin the
enforcement of the Transportation Act of 1920 on the[p.671]ground that it invaded the reserved
rights of the State. The Court dismissed the complaint as presenting no case or controversy,
declaring: It is only where rights, in themselves appropriate subjects of judicial cognizance, are
being, or about to be, affected prejudicially by the application or enforcement of a statute that its
validity may be called in question by a suitor and determined by an exertion of the judicial
power.409 And in Ashwander v. TVA,410 the Court refused to decide any issue save that of the
validity of the contracts between the Authority and the Company. The pronouncements, policies
and program of the Tennessee Valley Authority and its directors, their motives and desires, did
not give rise to a justiciable controversy save as they had fruition in action of a definite and
concrete character constituting an actual or threatened interference with the rights of the person
complaining.411
Concepts of real interest and abstract questions appeared prominently in United Public Workers
v. Mitchell,412 an omnibus attack on the constitutionality of the Hatch Act prohibitions on
political activities by governmental employees. With one exception, none of the plaintiffs had
violated the Act, though they stated they desired to engage in forbidden political actions. The
Court found no justiciable controversy except in regard to the one, calling for concrete legal
issues, presented in actual cases, not abstractions, and seeing the suit as really an attack on the
political expediency of the Act.413
Footnotes
395 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151152 (1970), citing Flast
v. Cohen, 392 U.S. 83, 101 (1968). But where a dispute is otherwise justiciable, the question
whether the litigant is a proper party to request an adjudication of a particular issue, [quoting
Flast, supra, 100], is one within the power of Congress to determine. Sierra Club v. Morton, 405
U.S. 727, 732 n. 3 (1972).
396 Tennessee Power Co. v. TVA, 306 U.S. 118, 137138 (1939). See also Alabama Power Co.
v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
397 Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice
Frankfurter concurring). This was apparently the point of the definition of legal right as one
of property, one arising out of contract, one protected against tortious invasion, or one founded
on a statute which confers a privilege. Tennessee Power Co. v. TVA, 306 U.S. 118, 137138
(1939).

398 Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice
Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might
be that a plaintiff had an interest that it was one of the purposes of the statute in question to
protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v.
United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in
Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to
contest allegedly illegal competition by TVA on the ground that the statute was meant to give
private utilities some protection from certain forms of TVA competition. (2) It might be that a
plaintiff was a person aggrieved within the terms of a judicial review section of an
administrative or regulatory statute. Injury to an economic interest was sufficient to aggrieve a
litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v.
Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943).
399 5 U.S.C. Sec. 702 . See also 47 U.S.C. Sec. 202 (b)(6)(FCC); 15 U.S.C. Sec. 77i (a) (SEC);
16 U.S.C. Sec. 825a (b)(FPC).
400 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v.
Atchison, T. & S.F.R. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1,
7 (1968).
401 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397
U.S. 159 (1970). Justices Brennan and White argued that only injuryinfact should be requisite
for standing. Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), the Court
applied a liberalized zoneofinterest test. But see Lujan v. National Wildlife Federation, 497
U.S. 871, 885889 (1990); Air Courier Conference v. American Postal Workers Union, 498 U.S.
517 (1991). In applying these standards, the Court, once it determined that the litigants interests
were arguably protected by the statute in question, proceeded to the merits without thereafter
pausing to inquire whether in fact the interests asserted were among those protected. Arnold
Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617
(1971); Boston Stock Exchange v. State Tax Comm., 429 U.S. 318, 320 n. 3 (1977). Almost
contemporaneously, the Court also liberalized the ripeness requirement in review of
administrative actions. Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967); Abbott Laboratories
v. Gardner, 387 U.S. 136 (1967).
Supplement: [P. 669, add to n.401:]
See also National Credit Union Admin. v. First Natl Bank & Trust Co., 522 U.S. 479
(1998) , in which the Court found that a bank had standing to challenge an agency ruling
expanding the role of employer credit unions to include multiemployer credit unions, despite a
statutory limit that any such union could be of groups having a common bond of occupation or
association. The Court held that a plaintiff did not have to show it was the congressional purpose
to protect its interests. It is sufficient if the interest asserted is arguably within the zone of
interests to be protected . . . by the statute. Id. at 492 (internal quotation marks and citation
omitted). But the Court divided 5 to 4 in applying the test. And see Bennett v. Spear, 520 U.S.
154 (1997) .

402 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).
403 Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person
establishes that he has standing to seek judicial review of an action because of particularized
injury to him, he may argue the public interest as a representative of the public interest, as a
private attorney general, so that he may contest not only the action which injures him but the
entire complex of actions of which his injuryinducing action is a part. Id., 737738, noting
ScrippsHoward Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309
U.S. (1940). See also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979);
Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to
represent interests of third parties).
404 United States v. SCRAP, 412 U.S. 669, 683690 (1973). As was noted above, this case has
been disparaged by the later Court. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 21392140
(1992); Whitmore v. Arkansas, 495 U.S. 149, 158160 (1990).
405 See Lujan v. Defenders of Wildlife, 112Ct.2130 (1992); Lujan v. National Wildlife
Federation, 497 U.S. 871 (1990).
Supplement: [P. 670, add to n.405:]
But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that citizen suit provision of Endangered
Species Act is directed at empowering suits to further environmental concerns does not mean that
suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524
U.S. 11 (1998) (expansion of standing based on denial of access to information).
406 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).
407 Giles v. Harris, 189 U.S. 475, 486 (1903).
408 258 U.S. 158 (1922).
409 Id., 162.
410 297 U.S. 288 (1936).
411 Id., 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S. 488 (1927), in which the
Court dismissed as presenting abstract questions a suit about the possible effects of the diversion
of water from Lake Michigan upon hypothetical water power developments in the indefinite
future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based
merely upon assumed potential invasions of rights were insufficient to warrant judicial
intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484485 (1923); New Jersey v.
Sargent, 269 U.S. 328, 338340 (1926); Georgia v. Stanton, 6 Wall. (73 U.S.) 50, 76 (1868).
412 330 U.S. 75 (1947).

413 Id., 8991. Justices Black and Douglas dissented, contending that the controversy was
justiciable. Justice Douglas could not agree that the plaintiffs should have to violate the act and
lose their jobs in order to test their rights. In CSC v. National Assn. of Letter Carriers, 413 U.S.
548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the
merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).
Suits Against Government Corporations.The multiplication of government corporations
during periods of war and depression has provided one motivation for limiting the doctrine of
sovereign immunity. In Keifer & Keifer v. RFC,886 the Court held that the Government does not
become a conduit of its immunity in suits against its agents or instrumentalities merely because
they do its work. Nor does the creation of a government corporation confer upon it legal
immunity. Whether Congress endows a public corporation with governmental immunity in a
specific instance is a matter of ascertaining the congressional will. Moreover, it has been held
that waivers of governmental immunity in the case of federal instrumentalities and corporations
should be construed liberally.887 On the other hand, Indian nations are exempt from suit without
further congressional authorization; it is as though their former immunity as sovereigns passed to
the United States for their benefit, as did their tribal properties.888
886 306 U.S. 381 (1939).
887 FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a congressional waiver
of immunity in the case of a governmental corporation did not mean that funds or property of the
United States can be levied on to pay a judgment obtained against such a corporation as the
result of waiver of immunity.
888 United States v. United States Fidelity Co., 309 U.S. 506 (1940).

Article 5 - Bill of Rights

Substantive Due Process
Justice Harlan, dissenting in Poe v. Ullman,65 observed that one view of due process, ably and
insistently argued . . . , sought to limit the provision to a guarantee of procedural fairness. But,
he continued, due process in the consistent view of this Court has ever been a broader concept .
. . . Were due process merely a procedural safeguard it would fail to reach those situations where
the deprivation of life, liberty or property was accomplished by legislation which by operating in
the future could, given even the fairest possible procedure in application to individuals,
nevertheless destroy the enjoyment of all three. . . . Thus the guaranties of due process, though
having their roots in Magna Cartas per legem terrae and considered as procedural
safeguards against executive usurpation and tyranny, have in this country become bulwarks
also against arbitrary legislation.