What 'Standing to Bring Suit' Actually Means

By Teo Spengler ; Updated June 15, 2017
U.S. Courthouse

Legal language employed by lawyers and judges sometimes uses words in a very different sense than they are used by ordinary English. The term "standing" is one of those words.

If you've been listening to the news at all in 2017, you've heard about the cases brought by states challenging President Donald Trump's executive orders barring travel from some Muslim majority nations. The Department of Justice (DOJ) argued that the states did not have standing to bring those suits.

If you wondered at the time what "standing" meant and still don't quite understand it, you've come to the right place to find out. Read on to learn what standing means in federal law and how the courts dealt with the "no-standing" arguments in federal court.

Not Just Anybody Can Sue

The doctrine of standing (locus standi) is based on the idea that not just anyone can challenge the constitutionality of a law in federal court. An individual cannot bring that kind of a case just because she is unhappy with an action of the government action or a federal law.

In fact, federal courts only have authority under the Constitution to decide cases that are actual disputes. To qualify as an actual controversy, the case must be brought by a person or entity with a direct stake in the action or law they are challenging. Being curious or angry about a law is not enough.

Those people, companies and entities who have a direct stake are said to have "standing" to challenge the law. If a court decides that a party does not have sufficient stake to sue, it usually rules that the party lacks "standing." For example, in a 1972 case before the Supreme Court, an environmental group sued the secretary of the interior to prevent enforcement of some of his decisions. The Court said that the group did not have standing since it has not demonstrated that its members would be substantially affected by the secretary's decision.

The Challenge to Trump's Executive Orders

Trump signed an executive order entitled "Protection Of The Nation From Foreign Terrorist Entry Into The United States." This order created a travel ban on citizens of certain Muslim-majority countries – described as a "Muslim ban" by Trump in a recent tweet – the states of Washington and Minnesota sued to block the government from enforcing it while its constitutionality is resolved by the courts.

The DOJ opposed this suit on various grounds, among them standing. It argued that neither Washington nor Minnesota had enough of a direct stake in the outcome of the suit to have standing to challenge the law.

Washington argued the standing issue. It claimed that it did have a direct stake in the executive order and would suffer harm if it were enforced. The state claimed that it has standing to sue because the Trump travel, immigration and refugee policy has hurt the state’s own proprietary interests. Washington said it will suffer economically though lost tax revenue from travelers who are barred by the Trump policy. It also pointed to lost tax revenue from Washington businesses harmed by the travel ban. it.

Washington state also claimed that its universities will suffer harm because several hundred students, faculty and staff come from the seven Muslim-majority countries that were the focus of the Trump travel ban. The policy affects those people's ability to come to the universities, to do research and to attend conferences.

Court Rulings on Standing

The district court judge who heard the case found that Washington has made enough of a showing of direct injury that it found it had standing. This ruling was affirmed by the Ninth Circuit panel that heard the appeal.

The Ninth Circuit said that, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members. It concluded that the States claimed enough direct harm from the executive order to give them standing.

Here's a snippet of the Ninth Circuit's ruling:

"The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave."

Since numerous state attorney generals have announced plans to take the president to court over other executive orders, the issue of state standing to challenge the constitutionality of orders will likely continue to be in the news in the near future.

About the Author

Living in France and Northern California, Teo Spengler is an attorney, novelist and writer and has published thousands of articles about travel, gardening, business and law. Spengler holds a Master of Arts in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley. She is currently a candidate for a Master of Fine Arts in fiction.