It is “all but gospel” that bringing suit in federal court requires the plaintiff to allege an “injury in fact.” But what if this gospel is wrong?
For over thirty years, Lujan v. Defenders of Wildlife has defined the contours of Article III standing. Justice Antonin Scalia’s opinion for the Court articulated a clear (if not always clearly applied) test to determine whether litigants could invoke the jurisdiction of the federal courts. Under this test, the “irreducible constitutional minimum of standing contains three elements,” the “first and foremost” being that the plaintiff must have suffered an “injury in fact.” This requirement of Article III is said to be “essential and unchanging.” Yet some in the clerisy are expressing doubts.
The justices spar over Lujan’s boundaries and routinely disagree on its precise application. Lujan itself was not unanimous10 and has not produced anything remotely approaching a consensus within the academy. Building on prior scholarship, which was skeptical of the evolving requirements for standing, many academics were harshly critical of what they saw as an ahistorical and ungrounded attempt to restrict public interest litigation in the name of constitutional fidelity.
Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit, in particular, has challenged Lujan’s threshold requirement of an “injury in fact.” This requirement, he has come to conclude, is not “properly grounded in the Constitution’s text and history, coherent in theory, or workable in practice.” Accordingly, Judge Newsom suggests abandoning the injury requirement altogether. Instead, standing to sue in federal court should exist whenever a plaintiff “has a legally cognizable cause of action, regardless of whether he can show a separate and stand-alone factual injury.” Whatever limits exist on plaintiffs pursuing statutory rights in federal court, Judge Newsom elaborated, come not from Article III but from Article II, and the latter’s “vesting of the ‘executive power’ in the President” in particular.
Judge Newsom’s critique of Lujan is particularly noteworthy not only because he is a prominent and well-respected federal appellate judge. Judge Newsom, like Justice Scalia, is an avowed formalist who embraces the principles of textualism and originalism. Yet despite his affinity for Justice Scalia’s mode of jurisprudence, Judge Newsom rejects a core element of one of Justice Scalia’s most important and influential opinions. Whereas Justice Scalia claimed the Constitution requires strict limits on standing, Judge Newsom believes “the Constitution, as originally understood, embodies much more liberal ‘standing’ rules than the Supreme Court has been willing to recognize.” His critique has not only begun to attract interest from scholars, but it has also received attention from the Supreme Court.
Lujan’s injury-in-fact requirement is often the most significant standing hurdle litigants must overcome and likely does more than any other part of the opinion to limit access to Article III courts. Abandoning an injury-in-fact requirement is tantamount to rejecting Lujan wholesale. Yet in embracing an Article II limitation on the legislature’s ability to create statutory causes of action, Judge Newsom’s approach embraces another core element of Justice Scalia’s jurisprudence: concern for the unitary executive and suspicion of efforts to delegate enforcement authority to private litigants or the courts.
Standing without injury, as suggested by Judge Newsom, might align standing doctrine more closely with the original public meaning of Article III and the historical understanding of judicial power. It would also represent a dramatic departure from the standing doctrine that emerged in the twentieth century.
While possibly more grounded in text and history than the approach championed by Justice Scalia and embodied in some recent Supreme Court decisions, it is not clear that it would produce a more coherent doctrine or prove more readily applied by lower courts. As Judge Newsom readily admits, his approach is “not a panacea” and “raises its own set of hard questions.” Discarding the current approach would unquestionably upend settled expectations and produce a period of judicial uncertainty, even if it would also augment the legislature’s power to regulate the jurisdiction of federal courts and authorize causes of action in federal court. This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court.
