The Failure of Frothingham

– this post also appears as a guest post on Dispatches from the Cuture Wars

Standing is a concept that has been much-maligned on Dispatches.  All too often it seems to be used as an excuse for a court to dodge a prickly situation.  But does it serve a valid purpose?  Is it merely being abused, or should it be scrapped entirely?

Standing has its roots in the earliest US Supreme Court decisions.  At first, the question revolved around how much a role the judiciary could play in regulating the actions of the other two branches of the federal government.  After a series of cases, the Court had established a doctrine that while they could review the actions of the other branches, it was only to be done where a true adversarial relationship between parties existed.  This was a departure from British courts, where decisions on the abstract were permitted.  It was thought that only in the adversarial relationship could all the issues truly be brought to light.  In other words, asking the Court to determine whether a law is unconstitutional based solely on arguments of principle might miss ways that the law might violate the constitution in practice.  The result in such a case is that a law might be declared constitutional when it really isn’t.  Alternatively, a law might be declared unconstitutional where the feared violation would never actually occur.  However, two hundred years of jurisprudence have developed a way around these concerns, in the form of facial and as-applied challenges.  Along with a refusal to adjudicate simple power struggles between the other branches of government (the core of the concept of justiciability), this formed the basis of historical standing.  Because it was framed as being require by the constitutional separation of powers (like separation of church and state, a concept integral to the Constitution but not an explicit phrase), at this point in time it would take a constitutional amendment to change.  Under the current climate, in which “judicial activism” is bandied about like a four-letter word, this just isn’t going to happen.

Modern standing doctrine began to be formulated 87 years ago.  In 1923, the Supreme Court decided two related cases: Massachusetts v. Mellon and Frothingham v. Mellon.  At issue was a federal program that required participating states to comply with certain provisions (designed to improve the health of new mothers and infants) in order to receive funding.  The eponymous state plaintiff argued that this violated the separation of powers between federal and state government.  This argument was quickly dismissed by the Court, because there was no harm to Massachusetts other than a dispute over the mere exercise of power (there being an option to opt out of the program), and the taxpayers were being taxed as US citizens, not Massachusetts citizens.  For the reasons given above, it would be fruitless to dwell any further on the state argument.  Of much greater interest is the private citizen suit, Frothingham.

Frothingham argued that the program violated due process in taking her property by means of taxation.  The program itself caused her no harm,nor violated her rights as an individual; the only harm to her was in a possible increase in her tax burden.  The problem with this is that the increase to her tax burden was not only negligible (possibly less than a penny), it is uncertain that one’s tax burden will  necessarily increase – the legislature ight decide to defund another program to avoid increasing taxes, for example.  State courts had ruled that while an individual’s stake in local taxes was a large enough portion of the local tax base to convey standing, it was too small for state taxes; the Supreme Court extended that to the federal level.  They did, however, leave an out; direct harm, but not an indirect harm shared by the general population, is grounds for standing.  The final paragraph summarizes the Court’s position fairly clearly:

The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. Gaines v. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented, the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess. [262 U.S. 447, 488-489]

To this point, I have avoided describing what standing is.  It is a set of three requirements for every valid judicial action.  First, there must be a party who is harmed in some manner, or is in eminent danger of said harm; a plaintiff.  Second, there must be a party that has directly caused that harm; a defendant.  Finally, the court must have the power to correct, prevent, or compensate for the harm.  This makes quite a bit of sense.  You don’t want someone who wasn’t harmed to benefit, especially  if the person who was “harmed” actually approved.  You want to make sure that any corrective action are directed at whoever caused the harm.  And of course, it’s just a waste of time if the court is powerless to do anything about it.  Unfortunately, in the aftermath of Frothingham, the courts made the standing requirements more stringent than they should have.  Modern standing is often formulated as follows:

To demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury.

In Frothingham, the phrasing was “not merely suffers in some indefinite way in common with people generally,” which is logically equivalent to “has suffered a concrete or particularized injury.”  It is this error in logic that has caused the confusion generated by cases such as Flast and Hein.  It is my opinion that, unless the collection of the taxes is directly tied to the violation, taxpayer status should not convey standing.  Two examples of the exception: 1) a program funded by a direct levy, such as a millage increase, or 2) taxes that are constitutionally barred in and of themselves, such as a poll tax.  That said, it certainly should be taken into account when plaintiffs allege that  government-funded program is violating their individual rights.  If someone’s individual rights are violated, it is their responsibility, not other taxpayers, to get the problem corrected.  On the other hand, I should not be barred from seeking recourse through the courts simply because everyone else’s rights are also being violated.  The failure of Frothingham lies in not recognizing that one should generally only be allowed to assert one’s own rights.


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