ArtIII.S2.C1.6.4.5 Causation

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The second prong of the Lujan test for Article III standing requires the litigant to demonstrate that the injury-in-fact that he or she has suffered is “fairly traceable” to the challenged actions of the defendant.1 Under Supreme Court jurisprudence, this requirement may not be met when the litigant’s injury results at least in part from the actions of a third party not before the court or, more broadly, when “the line of causation between the illegal conduct and injury [is] too attenuated.” 2

For example, in Simon v. Eastern Kentucky Welfare Rights Org., the Supreme Court found that the plaintiffs lacked standing because they failed to show that the defendants’ actions had caused them harm, rather than the actions of absent third parties.3 In that case, a group of indigent plaintiffs challenged an Internal Revenue Service (IRS) ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status.4 The plaintiffs alleged that the Revenue Ruling made such hospitals less likely to grant free services to indigents.5 However, the Court held that the plaintiffs lacked standing to sue because their injury was the result of independent action of parties not before the Court—i.e., the hospitals.6 In other words, the hospitals’ denial of services to the indigents, even if likely to injure them, was not fairly traceable to the federal government’s issuance of the Revenue Ruling.7 Instead, the Court determined that it was too speculative to conclude that the denial of service was caused by the Revenue Ruling or that the plaintiffs would receive free hospital services if the IRS revoked its rule, as hospitals could establish their own policies with respect to providing services to indigents without regard to the tax implications.8 Thus, the plaintiffs lacked standing because they alleged future injuries that depended at least in part on the actions of third parties not before the court, and they could not show more than mere speculation that those third parties would establish policies that would injure them.9

A further example of how the interplay between the decisions of absent third parties and the litigant’s injury has affected the causation prong of the standing analysis is Allen v. Wright.10 In that case, parents of African-American children who attended public schools alleged that the IRS had caused them injury by allowing racially discriminatory private schools to qualify for federal tax exemptions, preventing the desegregation of their children’s schools.11 The Court found these allegations did not establish sufficient causation for standing purposes.12 Relying on its earlier decision in Simon, the Court determined that it was not clear that racial segregation in the public schools was linked to the IRS policies because private school officials might not change racially discriminatory school policies in response to a withdrawal of tax benefits, and, even if they did, parents of children attending private schools might not transfer their children to public school as a result of such changes.13 Thus, the plaintiffs’ allegations that the IRS policy had caused them injury rested on speculation about the actions of multiple third parties, and such speculation was insufficient to establish a causal connection between the defendant’s actions and the plaintiffs’ alleged injuries for standing purposes.14

Similarly, in Murthy v. Missouri, the Supreme Court addressed allegations that federal agencies and officials infringed a group of plaintiffs’ First Amendment rights by coercing social media companies to make content moderation decisions that affected the plaintiffs’ online speech.15 The Supreme Court concluded that the plaintiffs had not established causation because their theories of standing depended on the social media platforms’ actions rather than the actions of government agencies and officials against whom the case had been brought.16 The “one-step removed, anticipatory nature of the alleged injuries” did not satisfy Article III standing requirements, the Court concluded.17

As in the case of standing for procedural injuries, discussed above, certain kinds of equal protection injuries may be accepted as sufficient for standing even if the possibility of ultimate relief from that injury remains somewhat speculative. When a litigant challenges a governmental entity’s alleged discriminatory practices on equal protection grounds, arguing that those practices have deprived it of a benefit granted to another favored class of individuals, the litigant may have standing even if it cannot demonstrate that it would have received the benefit in the absence of the government’s conduct—or that a judicial order would result in its receipt of the benefit if it prevailed. Rather, the litigant must simply show that it would secure equal treatment under the law if it obtained judicial relief. Thus, for example, in Adarand Constructors v. Peña, the Court allowed a company’s challenge to subcontractor compensation clauses in federal procurement contracts that allegedly favored small businesses controlled by racial minorities.18 The Court held that, even if the company could not demonstrate that it would be the low bidder on any particular subcontract, it had alleged a sufficient injury from its inability to compete on an equal footing with other companies.19 Similarly, the Court determined that a male plaintiff had standing to challenge Alabama laws that authorized courts to impose alimony obligations on husbands but not wives.20 The Court permitted the challenge even though it was possible that prevailing in the suit would “not ultimately bring [the plaintiff] relief from the judgment [for alimony] outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives.” 21

Footnotes
1
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted). The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998). On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability only if it seeks monetary damages. See id. A litigant cannot demonstrate “actual or imminent injury” from a legal requirement that has “no means of enforcement.” California v. Texas, No. 19-840, slip op. at 5 (U.S. June 17, 2021) back
2
See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013). back
3
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998). back
4
See id. back
5
The distinction between past and present injuries sometimes becomes blurred in practice. See, e.g., Clinton v. City of New York, 524 U.S. 417, 43031 (1998) (allowing the State of New York to challenge the President’s authority to exercise a line-item veto, based on a subsequent exercise of that veto that would result in a “substantial contingent liability” of billions of dollars on the state). back
6
518 U.S. 343, 351 (1996). back
7
See id. back
8
Id. back
9
A litigant that seeks damages for an asserted risk of future harm has not demonstrated a concrete harm sufficient for Article III standing unless “the exposure to the risk of future harm itself causes a separate concrete harm.” TransUnion LLC v. Ramirez, No. 20-297, slip op. at 20, 26 (U.S. June 25, 2021). back
10
E.g., Rizzo v. Goode, 423 U.S. 362, 372 (1976) (determining that litigants could not show “real and immediate injury” because their allegations concerned “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.” ). back
11
414 U.S. 488 (1974). back
12
Id. at 490–92. back
13
Id. at 494 ( “Abstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” ). back
14
Id. at 494–95 ( “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners.” ). Notably, the O’Shea plaintiffs alleged that they would likely have a future challenge to the government’s practices. If they had alleged that their past challenges to the government’s conduct had evaded judicial review because the unconstitutional conduct ceased before the litigants could bring a lawsuit, then the Court may have addressed the doctrine of mootness. See ArtIII.S2.C1.8.7 Capable of Repetition, Yet Evading Review (discussing circumstances in which the Court has made an exception to the mootness doctrine because conduct is “capable of repetition, yet evading review” ). back
15
O’Shea, 414 U.S. 488 at 496 ( “Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” ); id. at 498 ( “[W]here respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” ). See also Rizzo v. Goode, 423 U.S. 362, 372 (1976). back
16
461 U.S. 95, 105 (1983). back
17
Id. ( “That Lyons may have been illegally choked by the police [in the past] . . . does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer . . . who would illegally choke him into unconsciousness without any provocation or resistance on his part.” ). back
18
568 U.S. 398, 401–02, 406–07 (2013). See also 50 U.S.C. § 1881a. back
19
Clapper, 568 U.S. at 401–02, 406–07. back
20
Id. back
21
Id. at 407. back
22
In adopting a “certainly impending” standard, the five-Justice majority conceded that the Court’s prior cases had not uniformly required literal certainty. Id. at 414 n.5.
23
Id. at 401–02, 414 n.5. See also Trump v. New York, No. 20-366, slip op. at 1–2, 5–7 (U.S. Dec. 18, 2020) (per curiam) (rejecting plaintiffs’ argument that they had standing to challenge a presidential memorandum directing the Secretary of Commerce to exclude from the federal census apportionment base “aliens who are not in lawful immigration status” because of a “substantial risk” that Commerce’s implementation of the memorandum would lead to a reduction in congressional representation or federal funding).
24
Clapper, 568 U.S. at 402, 407.
25
Id. at 409. The Court noted that it had previously applied the standing requirements more strictly in cases concerning national security or foreign affairs, including challenges to “the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director,” United States v. Richardson, 418 U.S. 166, 167–70 (1974); “the Armed Forces Reserve membership of Members of Congress,” Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 209–11 (1974); and “an Army intelligence-gathering program,” Laird, 408 U.S. at 11–16.
26
573 U.S. 682 (2014).
27
Id. at 689–90, 695 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
28
Id. at 692–98. See also Dep’t of Commerce v. New York, No. 18-966, slip op. at 8–10 (U.S. June 27, 2019) (deferring to the factual finding of the lower court that the Department of Commerce’s reinstatement of a citizenship question on the federal census could cause concrete and imminent injury to states with large numbers of noncitizens by depriving them of federal funds distributed on the basis of state population because it would “depress the census response rate” among noncitizen households); Pennell v. San Jose, 485 U.S. 1 (1988) (holding that a landlord and association of owners and lessors of real property had standing to challenge a city rent control ordinance because of the probability that, as a result of the enforcement of the ordinance, “a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance” ); Doe v. Bolton, 410 U.S. 179, 188–89 (1973) (concluding that doctors had standing to challenge a Georgia statute restricting the performance of abortions “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes” because they “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief” ). The Court relied on Doe v. Bolton to reach the same result in Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976).
29
See Susan B. Anthony List, 573 U.S. at 692–98 (referring several times to the threat of enforcement of the law against the litigants as “substantial” ). See also Thole v. U.S. Bank N.A., No. 17-1712, slip op. at 5 (U.S. June 1, 2020) (concluding that participants in a defined-benefit plan lacked standing because they failed to adequately plead that the plan managers had “substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits” ). In the past, the Court has also described the standard for “imminent harm” as requiring the plaintiffs to show a “reasonable probability” of harm or a “threat of specific future harm.” See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153–55 (2010) (finding that conventional alfalfa farmers and environmental groups had demonstrated an imminent injury for standing purposes when they alleged that the Department of Agriculture’s partial deregulation of genetically engineered alfalfa crops would pose a “reasonable probability” of infecting organic conventional alfalfa crops with an engineered gene); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 184 (2000) ( “[W]e see nothing ‘improbable’ about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” ); Laird v. Tatum, 408 U.S. 1, 13–14 (1972) ( “Allegations of a subjective ‘chill’ [of First Amendment rights based on speculation] are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’” ) (internal quotation marks and citations omitted).
30
Davis v. FEC, 554 U.S. 724, 728, 734–35 (2008).
31
Id.
32
Id.
33
Id. See also Whole Woman’s Health v. Jackson, No. 21-463, slip op. at 14 (U.S. Dec. 10, 2021) (determining that healthcare providers and other opponents of the Texas Heartbeat Act, which allowed private citizens to sue parties who perform or abet abortions after a fetal heartbeat is detected, lacked standing to sue a private defendant who had attested in sworn declarations that he would not bring a private right of action against the plaintiffs). Carney v. Adams, No. 19-309, slip op. at 1, 5–6, 12 (U.S. Dec. 10, 2020) (holding that an attorney lacked standing to challenge the constitutionality of a provision in Delaware’s state constitution that required appointments to Delaware’s major courts to “reflect a partisan balance” when the attorney failed to demonstrate that he was “'able and ready’ to apply” for a judicial vacancy).