THE SUPREME COURT AND STANDING,
PART I: CALIFORNIA V. TEXAS
By
Prof. Anthony Michael Sabino
Since the Founding, the doctrine of standing has assured that the federal courts “decide only the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), avoid hypotheticals, and refrain from issuing advisory opinions. A formidable guardian of separation of powers, standing confines the Article III branch to exercising the judicial power alone, while concomitantly prohibiting any incursions into the realms of the Legislative and Executive Branches.
While recent decades have seen many iterations of the doctrine, its essential maxim remains unchanged: to stand before a federal jurist, the plaintiff must demonstrate that she has suffered a concrete and particularized injury, said harm was likely caused by the defendant, and a court can redress the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). And a bare five years ago, the U.S. Supreme Court refined this axiom by placing emphasis upon standing’s absolute requirement of a “concrete and particularized injury,” as distinguished from a mere statutory violation. Spokeo v. Robins, 578 U.S. 330, 340-41 (2016).
Now, in the term just completed, the high Court has twice elaborated upon the foundations of these maxims. The Justices’ first postulation was California v. Texas, 594 U.S. ___ (No. 19-840) (June 17, 2021), the much ballyhooed (and, some would say, anticlimactic) holding arising from the still-controversial Affordable Care Act, while the high tribunal’s second refinement is found in TransUnion LLC v. Ramirez, 594 U.S. ___ (No. 20-297) (June 25, 2021), a far more prosaic controversy invoking provisions of the federal Fair Credit Reporting Act.
This duo of new landmarks has significant ramifications for the continued evolution of the doctrine of standing, and so, in order to do right by both pronouncements, this article shall fittingly be in two parts. This installment commences with a necessary revisiting of Spokeo, the lineal parent of these latest decisions, followed by an analysis of California v. Texas, and its somewhat unique features. Part Two of this writing shall exposit TransUnion, and conclude with a reconciliation, if possible, of these most recent additions to the pantheon of standing jurisprudence.
Spokeo—The Contemporary Cornerstone
Our opening paragraphs aptly demonstrate that standing doctrine is replete with significant precedents, some timeless, and some more recent. From that bounty, the fairly modern landmark of Spokeo is properly regarded as the foremost precursor to the Supreme Court’s latest pronouncements.
Spokeo’s facts are simple. The petitioner, a corporate entity which compiled personal information valuable to employers in vetting potential hires, had in its database a profile that described the respondent as mature, educated, and affluent. But there was one problem; this information was inaccurate. Notwithstanding that Spokeo’s data portrayed Robins in the most complimentary of terms, he alleged injury therefrom, and sued pursuant to a federal fair credit reporting statute which entitled him to a measure of statutory damages for inaccuracies in his credit file.
In holding that Robins was sans standing, the Supreme Court affirmed that injury-in-fact, the doctrine’s foremost element, is a constitutional prerequisite, which “a bare procedural violation, divorced from any concrete harm,” cannot satisfy. Moreover, stated the Court, “Congress cannot erase Article III’s standing requirements.” This constitutional precept, wrote Justice Alito, plays an irreplaceable role in separation of powers, by “ensur[ing] that federal courts do not exceed their authority.”
Of further note here is the concurring opinion of Justice Thomas, significant for its reaffirmation that standing demands a plaintiff demonstrate “a concrete, individual harm” distinguishing her from the general population, a postulation which shaped the Court’s most recent landmarks. Our brief review of Spokeo concluded, we may now turn our full attention to the first of the high Court’s two latest applications of the venerable doctrine of standing.
California v. Texas—Individuals Without Standing
To quote Justice Alito in dissent, California v. Texas is the third installment in an “epic…trilogy.” Fortunately, we are absolved of the need to regurgitate most of that convoluted tale, given our prior analyses of the instant controversy’s path to the high Court. See A.M. Sabino & J.N. Sabino, “Fifth Circuit Decision Primes SCOTUS Test for Affordable Care Act,” 263 New York Law Journal p.4, cl.4 (February 19, 2020), and A.M. Sabino & J.N. Sabino, “Anticipating Another Supreme Court Test for the Affordable Care Act,” 261 New York Law Journal p. 4, cl. 4 (January 24, 2019). Yet it must be remembered that the case at bar, much like its forebears, pivoted upon the Affordable Care Act’s “individual mandate,” and, more so, the repeal of the tax penalty which once enforced that statutory edict.
Principally for reason of that legislative revision, California v. Texas “proceed[ed] no further than standing.” Writing for the Court, Justice Breyer opined that Congress had left behind nothing more than “textually unenforceable language” when it erased the Act’s tax penalty, and, in so doing, simultaneously eradicated the ability of the individual plaintiffs to fairly trace back any allegedly unlawful conduct to the defendants. Without “possible Government action that is causally connected to the plaintiffs’ injury,” the high tribunal found it was impossible for the complainants to satisfy standing’s second, irreducible requirement.
States Lacked Fairly Traceable Injuries
The causes of actions advanced by the plaintiff states fared no better; the high Court similarly ousted the sovereigns’ claims for lack of standing. Dividing the allegations of the states into categories of indirect and direct injury, the majority examined first the arguments that the ACA channeled individuals into state-run insurance pools, thereby indirectly imposing increased health insurance costs upon the sovereigns.
The high tribunal reasserted its earlier holding that, without the bona fide threat of a tax penalty, these jurisdictions could not fairly trace their purported injuries to unlawful conduct by the defendants. Justice Breyer then expounded upon the shortcomings of the sovereigns’ “counterintuitive theory of standing,” insisting that “far stronger evidence” was needed to meet the rigorous test for Article III standing. In sum, the majority held “the States have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo.”
The Court disposed of the states’ direct injury allegations with even greater celerity. Notwithstanding the sovereigns’ complaint that the ACA imposed numerous and expensive recordkeeping and similar requirements upon them, the majority remained unpersuaded that the states had demonstrated an injury fairly traceable to the defendants. Consistent with its earlier explications, the supreme tribunal faulted the plaintiff sovereigns for conjoining their various claims to the now-unenforceable individual mandate. Given that not a single member of this diversified body of complainants had demonstrated a “concrete, particularized injury fairly traceable to the defendants’ conduct,” the Supreme Court directed that all claims be dismissed.
Still, one cannot depart California v. Texas without according due respect to its supplementary opinions. As he did in Spokeo five years prior, Justice Thomas assented to the Court’s newest standing landmark. Yet the veteran jurist was constrained to comment that the outcome here was driven primarily by the “particular claims the plaintiffs chose to bring,” and their subsequent failure to “trace a clear connection between an injury and unlawful conduct.”
In contradistinction, Justice Alito’s dissent was unabashedly critical of the decision, labelling it a “remarkable holding…based on a fundamental distortion of our standing jurisprudence.” The author of Spokeo set forth in great detail the ACA’s “expensive and burdensome obligations….[as] backed by substantial enforcement mechanisms,” including the threat of significant financial penalties (which, unlike the individual mandate’s now-repealed tax penalty, were still extant). The learned dissent unreservedly concluded that the complaining sovereigns had amply demonstrated concrete and particularized injuries, which could be redressed by judicial action. Consequently, their standing to maintain the case at bar “turns on traceability.” Justice Alito found that essential prerequisite easily met, for reason that “[t]he state plaintiffs have shown that they are the object of potential federal enforcement actions if they do not comply with costly and burdensome obligations that the ACA imposes.” The dissent strenuously argued those mandates, enforceable by the national government, are “sufficient to establish standing.”
Lastly, the erudite dissent explains that the high Court “has long resisted efforts to transform ordinary merits questions into threshold jurisdictional questions by jamming them into the standing inquiry.” Justice Alito expressed regret that the majority was, in his estimation, converting the traceability inquiry from a standing question into a merits issue. In a final rebuke, Justice Alito characterized the majority’s reasoning as “a patent distortion of the traceability prong of our established test for standing.”
The last stated gives us pause in assessing the stature of California v. Texas in the jurisprudential domain of standing. It would be easy, and ostensibly accurate, to label the case at hand as nothing more than a statement of the Court’s current wisdom lauding concrete, traceable injury as the doctrine’s first two axioms. Yet such a facile categorization would ignore the serious questions raised by the dissent. At this time, we think it best to forbear from relying excessively upon this latest proclamation, especially in light of the extraneous controversy which overshadowed this proceeding. Instead, we think it better to take the measure of California v. Texas in conjunction with the high bench’s other pronouncements on standing, most especially TransUnion, which shall be the subject of our next installment on the Supreme Court’s continued evolution of its standing jurisprudence.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com.