Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.