August 22, 2014

Standing to Challenge Unconstitutional Governmental Action

by Sven Magnussen

Article III of the U.S. Constitution requires a case or controversy. 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 is one within the power of Congress to determine.” The “zone of interests” test for standing requires that the interest sought to be protected be the sort of interest a federal statute was designed to protect. See Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (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]"), Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972).

The Court promulgated a two–pronged standing test; whereby, the litigant (1) has suffered injury–in–fact and (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. See 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 injury–in–fact should be requisite for standing. Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), the Court applied a liberalized zone–of–interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (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 litigant’s 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).