Reorganizing Organizational Standing

Introduction

On January 23, 2017, the Citizens for Responsibility and Ethics in Washington (“CREW”) sued President Trump, alleging Emoluments Clause[1] violations.[2] One of the most peculiar aspects of the case is standing: the organization alleges it has been injured by the violations because of its “mission of . . . ensuring the integrity of government officials” and because it “has expended a significant amount of time and resources since the election educating the public about the Foreign Emoluments Clause and” Trump’s alleged violations thereof.[3] Many commentators expressed instinctual skepticism about this injury,[4] but under lower court precedent CREW’s standing is bona fide. That is because the lower federal courts have disfigured one enigmatic Supreme Court case to effectively remove all Article III limitations for well-lawyered advocacy organizations.

Although it is well established that Article III both (A) prohibits individuals from litigating ideological injury[5] and (B) provides that organizations cannot get standing on easier terms,[6] the lower courts are permitting the latter to base injury on their “mission” and thus obtain “standing on terms that the Supreme Court has said individuals cannot.”[7] In particular, the lower courts have fashioned a two-pronged organizational standing test asking whether the group has (1) identified an activity that conflicts with its mission and (2) made volitional counter-expenditures in response.[8] The lower courts suppose the Supreme Court’s decision in Havens Realty v. Coleman compels this result in deed if not in word. For decades that view has prevailed. This essay explains this doctrine’s incompatibility with Article III, dispels the myth about Havens, and then evaluates CREW’s standing under a proper organizational test.

Part I catalogs organizational standing jurisprudence. Following the Supreme Court, the lower courts claim that organizations can get standing in only two ways. But a more useful taxonomy of their approach in fact recognizes three. An organization has standing to sue (1) on behalf of its members if one of them has standing, (2) when it possesses the kind of “direct stake” that would suffice for an individual, and (3) pursuant to the lower courts’ mission-based miscreation (hereinafter “mission advancement standing”). This final category is illegitimate.

Part II explains why. According weight to the first prong—mission conflict—violates the rule that “standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”[9] Regarding prong two—expenditures—a volitional outlay made without a preexisting viable harm is a noncognizable “self-inflicted injur[y].”[10] One wonders, then, how the lower courts became so lost. They cite one—and only one—Supreme Court case as authorization: Havens Realty v. Coleman.

Part III detaches Havens from the lower courts’ fabrication. Although Havens is an enigma it does not authorize this doctrine. Havens concerned an organization that operated a housing counseling service and identified suitable apartments for local, poor citizens. The case arose when a local apartment lied to one of the organization’s counselees regarding property vacancies on account of the man’s race, effectively unraveling the organization’s counseling. Essentially, “what [the organization] used its own resources, [and] information . . . to build up, [the apartment’s] racist lies tore down.”[11] Contra the lower courts’ doctrine, mission was irrelevant and volitional expenditures did not establish injury.

Part IV provides a path forward, identifying a constitutionally grounded inquiry to determine whether an organization may have standing irrespective its members. One hallmark unifies the inquiry: instead of asking, as the lower courts have, how the organization spent resources, the question is whether the organization was injured irrespective of these volitional expenditures. This Part closes by evaluating CREW’s standing under this test.

I. Organizational Standing Categories

It is a common refrain among the lower courts that organizational standing exists in two forms. While they pay homage to that notion they do not follow it. The Supreme Court has recognized two forms—permitting organizational suit “both [1] as a representative of its members if one of them has standing and [2] on its own behalf” pursuant to “the same inquiry as in the case of an individual”[12]—but this dichotomy fragments in the lower courts. Indeed, they let “organizations get standing on terms that the Supreme Court has said individuals cannot”[13]—plainly the two-category adage is incomplete. This Part presents three to enable greater analytical clarity.

A. The Constitutional Categories

The first category—so called representational standing—need not occupy us. That doctrine recognizes that an organization can bring suit as a representative of its members if at least one member has standing and some prudential considerations are met.[14] This category is immaterial to the problem addressed herein because the organization’s standing necessarily turns on evaluation of an individuals’ standing. A court conducting this inquiry may err, of course, but it will err within the constitutionally permissible framework.

In the second category, an organization may obtain standing pursuant to “the same inquiry as in the case of an individual.”[15] To distinguish more easily with the other categories, I call this category “direct stake” organizational standing.[16] It recognizes that an organization may suffer injury even if no individual member does. Some examples are necessary.

First consider the canonical Sierra Club v. Morton. There, the U.S. Forest Service sought to develop public land for a ski resort. The Sierra Club—an organization that alleged “a special interest in the conservation and the sound maintenance of the national parks”—sued to block the development.[17] It brought suit on its own behalf, supposing its “longstanding concern with and expertise in [environmental] matters were sufficient to give it standing.”[18] The Court found otherwise. Sierra Club had no special relation with the park, thereby lacking “individualized injury.”[19] The Court also reasoned that if Sierra Club’s theory sufficed, there would remain “no objective basis upon which to disallow a suit by any other bona fide ‘special interest’ organization.”[20] The Supreme Court closed with the admonishment that standing cannot be based on a mere “organizational interest in [a] problem.”[21]

The high court’s counter-example (and its only other meaningful foray into direct stake standing, save Havens) is Village of Arlington Heights v. Metropolitan Housing Development Corporation.[22] There, a religious order sought to develop its land for low income housing. It contracted with the plaintiff, Metropolitan Housing Development Corporation (“MHDC”), for the construction, executing a land-lease with MHDC and an accompanying sale agreement covering other property.[23] The latter was contingent upon MHDC’s success in convincing the Village of Arlington Heights to rezone the development land for multifamily housing.[24] At a town hearing on the rezoning, some locals expressed race-based disapproval, anticipating that the development would integrate the overwhelmingly white town.[25] Rezoning was denied and MHDC brought suit on its own behalf.

Because there was “little doubt” MHDC had standing, the Court’s discussion was brief.[26] But the Court’s direct stake organizational standing cases are few, so its analytical bases for standing merit emphasis. First, the Court held MHDC suffered cognizable “economic” injury. It did not unpack that harm, but its seems plain: MHDC lost money preparing the construction which the town prohibited, and it had a financial (that is, non-philanthropic) incentive (the contingent land sale agreement) for this construction in the first instance. But the Court also found a second type of injury: namely, it noted MHDC’s “interest in making suitable low-cost housing available in areas where such housing is scarce” could suffice—regardless of “economic” harm—and that this interest suffered cognizable harm because the Village blocked MDHC’s “specific project,” that is, the harm possessed “the essential dimension of specificity.”[27]

I return to this second injury shortly but for now three observations are critical. First, economic injury to an organization can suffice. Second, economic harm is not equivalent with spending money (otherwise, MHDC’s second injury would also have been economic)—instead, there must be a financial impetus for spending money (to MHDC, the contingent land sale agreement). Third, a blockade to an organization’s ability to pursue lawful, philanthropic activity can also suffice, but “specificity” is a critical consideration in this regard.

B. Mission Advancement Standing

Finally, the lower courts have fashioned a doctrine asking whether the defendant’s “allegedly unlawful activities injured the plaintiff’s interest in promoting its mission” and “whether the plaintiff used its resources to counteract that injury.”[28] One would think Sierra Club would warn the courts off this path. I submit that more sophisticated lawyering muddies the otherwise plain comparison. In any event, an illustration is necessary.

Consider the D.C. Circuit’s Abigail Alliance v. Von Eschenbach.[29] That case involved the FDA’s three-phase drug approval process. Drugs which pass phase one are “sufficiently safe for substantial human testing” albeit “not yet proven to be safe and effective to the satisfaction of the FDA” and therefore not yet marketable.[30] On average, completing the second and third phases takes six years.[31] The Abigail Alliance for Access to Development Drugs (“the Alliance”), requested that the FDA allow the terminally ill to purchase drugs that have only passed phase one. The FDA declined and the Alliance thereafter brought suit on its own behalf.

The Alliance’s injury claim was that it had a mission of assisting people in “accessing potentially life-saving drugs” and that FDA’s denial forced it to “divert significant time and resources” on addressing the agency’s “unduly burdensome requirements.”[32] The court accepted without scrutiny that the Alliance’s mission was “impeded” and that “this injury [wa]s directly attributable to FDA policies.”[33] And, notwithstanding its recognition that an organization is not injured “by expending resources to challenge [a] regulation itself,”[34] the court found standing based on the Alliance’s performing that very act.

It’s worth pausing here briefly to compare the Alliance to MHDC. First, the Alliance did not allege economic injury. Regarding philanthropic injury, the Alliance (unlike, perhaps, a sick individual) was—unlike MHDC—not blockaded from anything. And even if that were not true, there was plainly no specificity. Indeed, it is not plain how specificity could arise. It is not as if, contrary to logic, the organization itself was denied the right to imbibe unapproved drugs.

This essay is too brief to more comprehensively chronicle the lower courts’ misadventures, but mission advancement standing is indeed pervasive. For some of the most fascinating examples, see the cases below.[35]

II. Mission Advancement Standing’s Illegitimacy

Mission advancement’s standing has the principal feature of allowing organizations to enter the federal courts on terms “individuals cannot.”[36] It is ipso facto illegitimate because, for organizations, the Supreme Court has instructed lower courts to “conduct the same inquiry as in the case of an individual.”[37] This Part takes the analysis further, explaining that even absent that clear command, the lower courts’ doctrine is unconstitutional.

To establish cognizable injury the Supreme Court requires four conditions be satisfied. The plaintiff must establish (1) “invasion of a legally protected interest”—i.e., a legal violation—that is (2) “concrete,” (3) “particularized,” and (4) “actual or imminent.”[38] In the mission advancement context the mission conflict and expenditure prongs are, ostensibly, meant to fill in for the “concrete” and “particularized” requirements. But the defendant’s action must satisfy concreteness and particularization; actions fully within the plaintiff’s control, such as crafting a mission and spending money, cannot do that work.[39]

The lower courts’ elevation of prong one is particularly odd in light of Sierra Club. As noted earlier, sophisticated lawyering is likely responsible for the change; organizations now decorate their complaints with greater detail and precision; i.e., we protect animals and the government’s failure to do the same has forced us, against our wishes, to devise alternative animal welfare projects.[40] But standing is more than a pleading game.[41] And mission conflict’s irrelevance runs deeper than Sierra Club. Take, for instance, Diamond v. Charles, in which a physician—Dr. Diamond—sought to defend an abortion ban when the state declined to do so.[42] To establish injury Diamond claimed that as a physician he had a “special professional interest” in medical standards as applied to abortions.[43] But the Court recognized this was no more than a “cloaked” interest in seeing the law enforced and obeyed.[44] As such his suit was one to “vindicate value interests”[45]—an “abstract concern” insufficient for Article III.[46] And that jurisdictional bar, the Court explained, applies “with even greater force” when a private plaintiff attempts to compel a state to either “create” or “retain” a legal framework through which it makes enforcement decisions.[47]

That “greater force” no doubt applies in such a context because ideological challenges to government action strike at the core of Article III’s separation of powers foundation. The “case-or-controversy” requirement is a “fundamental limit[] on federal judicial power in our system of government.”[48] It prescribes a boundary on what might otherwise be a limitless ability to make or interpret law;[49] the judiciary may only exercise this awesome power in the context of a limited and concrete case. As a corollary, a plaintiff cannot enter federal court based on the supposed “injury” incurred by observing governmental conduct with which she simply disagrees.[50] But the mission conflict prong presupposes just the opposite, and the lion’s share of cases under this doctrine relate to government activity.

Once mission conflict is stripped away, all that remains in the lower courts’ test is naked resource expenditure. The Supreme Court has rejected injury on this basis as well, most recently in Clapper v. Amnesty International.[51] There the Court found the individual plaintiffs’ primary injury argument—that the NSA may be intercepting their electronic communications—too speculative for standing.[52] The plaintiffs argued alternatively that, even if the government’s alleged spying was uncertain, the plaintiffs’ money spent in fear of this non-injury created standing.[53] Along those lines the plaintiffs claimed “the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to talk in generalities rather than specifics, or to travel so that they can have in-person conversations.”[54] In other words, the non-injury forced expenditures. But the Court considered none truly forced.

Recognizing that the plaintiffs did not face a cognizable threat of impending surveillance, the costs they incurred to avoid the surveillance were wholly “self-inflicted.”[55] They could not
“manufacture standing by choosing to make expenditures” based on an injury that was not in fact occurring.[56] “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on” an alleged injury that was insufficient in the first place.[57]

Clapper is the most recent in a precedential line holding that “no action of the parties can confer subject matter jurisdiction upon a federal court.”[58] To that end, “feigned or collusive” suits are not viable;[59] a plaintiff cannot “sue himself,”[60] initiate suit at the defendant’s request,[61] or enlist his kin as defendant in a contrived suit.[62] Put simply, a party cannot create a “[c]ase” or “[c]ontroversy”[63] when, without their scheming, this constitutional prerequisite would be absent. But mission advancement standing invites such scheming in hyperdrive. Instead of authorizing collusive suits it permits an enterprising organization to create standing without a collaborator.[64] Instead of paying an ally to contrive a suit an organization can, upon identifying activity it finds distasteful, spend that money on almost anything.

III. Distinguishing Havens Realty

Havens Realty v. Coleman[65] is oft-cited as authorizing mission advancement standing. Havens is admittedly enigmatic, but the bottom line is that it is neither a mission advancement case nor an application of Village of Arlington Heights. The injury recognized falls between the two, but I submit that it represents “direct stake” organizational standing’s outer boundary and does not authorize the lower courts’ doctrine.

Havens presents three knots to untangle. First, I explain that the organizational plaintiff did not establish standing through volitional expenditures (nor a mission conflict—a feature the Court never mentioned). Although the Court mentioned “drain[ed]” resources,[66] that drain occurred as an effect of a viable injury. In other words, the lower courts have Havens absolutely backwards, basing injury on volitional expenditures whereas in Havens an injury drained resources. Second, given my claim that expenditures were not the injury, I explain what actually injured the organization. Third, I discuss why the Supreme Court nonetheless considered the resource drain relevant.

A. The Organization’s Expenditures Did Not Establish Injury

Havens concerned an apartment complex owned by defendant Havens Realty.[67] The plaintiff organization—Housing Opportunities Made Equal (“HOME”)—provided housing counseling services in Havens’ geographic area and investigated housing discrimination.[68] The case arose when Havens told a black HOME counselee—individual plaintiff Paul Coles—that it had no vacancies.[69] At around the same time HOME sent black and white “testers,”—employees disguised as prospective renters—to Havens to determine whether it was denying housing discriminatorily.[70] It was: only HOME’s white tester was apprised of openings.[71] HOME, Coles, and the testers all filed suit. To establish its standing HOME asserted the now infamous mischief-making line: “Havens had frustrated the organization’s counseling and referral services, with a consequent drain on resources.”[72]

The Court held that because Havens’ “steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact.”[73] That is, this nebulous (and clarified, below) “impairment” of HOME’s counseling and referral services established “concrete and demonstrable injury”[74] without regard to subsequent expenditures (much less mission). The Court’s following line is what has generated the confusion: “with the consequent drain on the organization’s resources” Havens’ act “constitute[d] far more than simply a setback to [HOME’s] abstract social interests.”[75]

What does that mean? That, although HOME suffered some indeterminate harm when Havens lied to Coles, it was only cognizably injured because it spent money afterwards? That interpretation, adopted by the lower courts, gets the chronology backwards. In this regard the Court’s use of “consequent” is critical. Webster’s defines the word to mean “something produced by a cause or necessarily following from a set of conditions.”[76] Any money spent after the harm would not be consequent because it did not necessarily follow from Havens’ lie. HOME’s own volition intervened. To have been the “consequence” of the lie their status as “drained” must have been set the instant Havens lied. The Court, then, was referring to pre-illegality expenditures.

This may seem counterintuitive: how could the illegality ‘drain’ resources already spent? The explanation turns on the distinction between “expenditure” and “drain.” “Expended” has a neutral connotation whereas “drained” is pejorative, indicating waste. The neutral act attains this negative connotation not through any choice of the organization, but through the actions the defendant visits upon it. Before the illegality, the expenditures were made consistent with HOME’s goals. But they were “drained” once Coles is lied to and denied housing—that is, illegally denied the counseling services’ object.

But, just as critically, the pre-illegality expenditures alone did not constitute injury. HOME’s activities were not impaired until Havens’ illegality effected (i.e., drained) them. The connection between the expenditure and the subsequent illegal act is critical; both conditions were necessary for HOME’s standing and neither in isolation would suffice. We know pre-illegality expenditures could not alone suffice because Havens involved a separate plaintiff who alleged injury on precisely those terms. HOME’s white tester—R. Kent Willis—expended time investigating Havens but was nonetheless denied standing in this capacity.[77] The reasons why are obvious: he was not lied to, and, because Coles was not his client, Havens’ illegality did not drain his resources.[78]

B. Diagnosing the Injury

With the expenditure issue properly conceptualized, isolating the injury’s genesis becomes tractable. The only distinction between HOME and Willis is that HOME counseled Coles, the object of the lie. But the question remains, why did the lie establish injury? This construction of the harm does not neatly align with Arlington Heights, wherein the plaintiff organization’s noneconomic injury was based on its total inability to undertake its desired project.[79] Even post-illegality, HOME remained free to counsel anyone—Coles included—to its fullest desire.

The Court was cryptic. It held that if Havens’ lie, “as broadly alleged . . . perceptibly impaired” HOME’s activities, HOME suffered injury.[80] This abstruse passage has thoroughly confounded the lower courts, and it is easy to see why. What relevance can we attribute to the allegations’ “breadth”? And what defines “impairment”? The only explanation, on Havens’ facts, is that Havens “tore down” what HOME used its resources to “build up.”[81] Havens’ lie “unraveled” the services HOME had performed for Coles, effectively telling the counselee that HOME’s counseling was wrong.[82] HOME’s work was sabotaged, its activity of “provid[ing] truthful counseling” was “directly interfered with” when Havens lied to its counselee.[83] The temporal progression is critical; HOME performed lawful, philanthropic activity and Havens’ subsequent illegality operated directly on the beneficiary of HOME’s activity and nullified the service provided. It would be as if the Sierra Club planted trees and the U.S. Forest Service subsequently uprooted then. The sequence was not that HOME identified a racist Richmond housing provider and then counseled clients to avoid the complex.[84] This is precisely the interpretation that has eluded lower courts.

C. The Expenditures’ Relevance

Thus far I have made two points about Havens: (1) HOME’s pre- and post-illegality expenditures were neither necessary nor sufficient to establish an injury and (2) the “unraveling” of HOME’s counseling constituted injury. But alone these conclusions do not explain the Court’s reference to the “consequent drain” on HOME’s resources.[85] The Court’s antecedent Arlington Heights decision helps solve this last mystery.

Recall that in Arlington Heights MHDC’s noneconomic injury was that it was blockaded from pursuing its discrete project.[86] It is tempting to conflate MHDC’s economic injury with HOME’s drained resources instead, but the Havens Court expressly rejected this equivalency. Indeed, the Havens Court closed its “resource drain” passage by citing Arlington Heights as support for noneconomic injury.[87] That is easily explained: no financial impetus motivated Havens’ philanthropic counseling.

 

	Havens	Arlington Heights
Economic Injury	None	Lost Prepatory Expenses on Financially Beneficial Contract
Non-Economic Injury	Unraveling of Counseling Services	Prohibition on Conducting Desired Project

 

The relevance, then, of HOME’s resource drain was to ensure that its noneconomic injury (the unraveling) contained “the essential dimension of specificity” that Arlington Heights recognized requires special attention in noneconomic injury claims.[88] To apply the Court’s modern vernacular to the Havens facts, the dimension ensured that “the invasion of [HOME’s] legally protected interest” in having its counseling services unimpeded by illegal steering was sufficiently “concrete” and “particularized”; that is, it was not “abstract” and it “affect[ed] [HOME] in a personal and individual way.”[89] For MHDC concreteness and particularization were ensured because the organization was disallowed from continuing a specific project. It was not challenging a zoning ordinance in the abstract, the effects of which may (or may not) affect it (or some other entity) at some undetermined future date. Likewise with HOME’s resource drain.

IV. Evaluating Crew’s Standing

As the foregoing illustrates, “direct stake” organizational standing knows three variations. In other words, an organization seeking standing on its own behalf can show injury in three ways. First—and most obviously—an economic injury suffices. Because standing is so obvious under in this category it is seldom litigated.

Second, an organization might have standing regardless economic injury where it can show it was prohibited from engaging in lawful activity. That explains MHDC where, even removing the financial basis for the construction, the organization nonetheless suffered injury.

Third, an organization might have standing where it can show its activities were unraveled by illegal activity—where it has performed lawful activity which the defendant subsequently nullifies or at least partially unwinds. That explains Havens, where the defendants’ unlawful conduct cancelled the organization’s philanthropic counseling. In these latter, noneconomic, categories, the courts must be especially attuned to “specificity,”[90] that is, to concreteness and particularity.[91] For example, HOME could not have alleged that Havens simply harbored racial animus—that would not be concrete. Nor could some nonlocal advocacy group, upon discovering Havens is lying to individuals unconnected to the organization, bring suit. There would be no particularization; its services would not have been unraveled.[92] To establish unraveling, then, an organization must have the proper temporal relationship to the challenged conduct and its activity must bear a concrete, particularized harm by virtue of that conduct.

With this framework established, does CREW have standing? Having likely anticipated that such high profile litigation would illuminate this problem, CREW set forth a blunderbuss of supposed harms. But none are cognizable.

CREW first alleges that it is a nonprofit[93] with the mission of ensuring government integrity and informing the public thereof.[94] Neither allegation is relevant under a proper organizational standing inquiry, although in combination the two seem to telegraph that the organization is not alleging economic harm (indeed, it presents none). CREW then proceeds to broadly allege harms that largely fall in two categories: (1) costs it incurs responding to the President’s alleged conflicts and (2) diversion of resources from projects it would prefer to pursue more vigorously.

With regard to category one, CREW alleges it has been “interviewed by and quoted in the news media”[95] regarding the President, that it has “received hundreds of questions from the news media”[96] that it has “conducted legal research”[97] on the Emoluments clause, that it will continue to “monitor [Trump]’s business interests,”[98] and that it has “hired a new senior attorney” to strengthen these efforts.[99] All of these supposed harms are nonstarters. CREW has not been prohibited from anything, and no work CREW has performed has been unraveled—indeed, CREW instead alleges that, because of President Trump, it is volitionally doing more work. There is no legal compulsion to conduct this work and to the extent any of these items could be considered injuries they are fully self-inflicted.

In category two, CREW alleges it has diverted its time and resources from other, non–Trump-related projects.[100] For example, its Trump endeavors have diverted its resources from (1) other litigation,[101] (2) “a project related to campaign finance and ethics in the states,”[102] (3) drafting comments on agency rulemakings,[103] (4) “research[ing] and publish[ing] . . . blog posts,”[104] (5) reviewing “contributions to new members of Congress,”[105] and (6) writing about the “tax returns of nonprofit groups engaged in political activities.”[106] Each allegation is equally insufficient. Once again, there is no allegation of an unraveling of, or a prohibition on, organizational activities. CREW has simply alleged volitional rearrangement of its own priorities. Because CREW has no claim to injury from Trump’s conflicts notwithstanding expenditures, these diversions constitute an attempt to “manufacture standing by choosing to make expenditures.”[107]

CREW closes with two Hail Marys. First, that Trump’s conflicts will make it harder to “protect from corrupt and unethical manipulation” other “innocent and unaware third parties.”[108] This is a frivolous attempt at standing on behalf of others who themselves have in fact suffered no injury.[109] But finally, as its last effort, CREW stumbles on an injury perhaps cognizable, albeit not to CREW. It alleges that President Trump’s commercial competitors “also are injured.”[110] That may be true, but none are a party to CREW’s lawsuit and none can remedy CREW’s absent injury.