M: Hypothetical question. Go online if you need to answer this. Actually go online anyway to make sure that your answer comports with reality. How would it be possible to pass legislation that would require... Okay, let me start that again with the context. Situations keep arising where the person with standing is difficult to identify even if it's obvious that something illegal is being done. With that in mind, what could be done in terms of legislation to create a situation where anyone... Sorry, I'm being a little superlative here. Where it would be more capable for people to make individual cases without the 100% standing that is currently necessary in a way that was restrictive enough to keep ridiculous amounts of cases from being filed in some sort of lawfare. You know, some sort of preventive or punishment for simply trying to make problems when you've got absolutely no tie-in to a particular thing. But that would allow for court review of whether that standing was sufficient, and more importantly, requiring the courts to define things in a way that would allow for description of who actually should have standing in these vague cases. Like Donald trying to put his name on the Kennedy Center, and doing so with it still being illegal. Now, we talked about how the Kennedys might have grounding, I think, a while ago. But that's the kind of thing where it is such a vague concept as to who actually gets hurt sufficiently because the way the courts have been acting, having an entire city get a little bit of hurt all at once somehow is not sufficient for one of those people to say, hey, knock it off. So the legislation needs to be able to address that kind of thing without opening a situation where, like, anti-choice groups are able to say they are speaking up for the quote-unquote unborn without voices or some other situation where the idea of starting legislation actually can take the ability to choose to, not legislate, what's the word for it in the courts? Anyway, to go forward in the courts or not is taken out of the hands of someone who actually does have that standing. Am I making sense with my question?
G: Yes, you're making sense, and I think you're actually asking a narrower question than it sounds at first.
You're not asking, "How do we let anyone sue over anything?"
You're asking:
How could Congress create a mechanism that allows courts to review alleged government illegality when the injured party is diffuse or difficult to identify, while preventing random ideological lawsuits?
That's actually a longstanding problem in American law.
The biggest obstacle is that, in federal court, Congress cannot simply abolish Article III standing. The Supreme Court has held that the Constitution itself requires an "injury in fact," and Congress can't merely declare that everyone is injured whenever a law is violated. citeturn0search2turn0search3
That said, Congress has several tools available.
Instead of saying "everyone has standing," Congress could specify exactly who may sue.
For example:
So instead of asking a court, "Does somebody somewhere have standing?" Congress answers that question ahead of time.
For your Kennedy Center example, a statute could say:
"Any current or former trustee, any living member of the Kennedy family identified in the statute, or the Attorney General for the District of Columbia may seek declaratory or injunctive relief."
That avoids the ambiguity entirely.
This is closer to what you're describing.
Congress could authorize suit by citizens, but only if several gatekeeping requirements are met.
For example:
That starts looking less like "everyone can sue" and more like a licensed public-interest enforcement mechanism.
This is probably the closest existing analogy.
Congress already allows private citizens to sue on behalf of the United States in certain contexts under the False Claims Act.
The government remains the real party in interest, but private citizens can initiate litigation. The Supreme Court has upheld this type of standing because the government has effectively assigned part of its claim to the relator. citeturn0search2turn0search1
One could imagine a similar framework outside fraud:
"A citizen may bring an action alleging unlawful executive action after notifying the Department of Justice. DOJ has 90 days to intervene, decline, or dismiss."
That wouldn't automatically solve every constitutional issue, but it builds on an existing legal model rather than inventing one from scratch.
Another possibility is creating an office whose entire job is to litigate these questions.
Think of something like:
Any citizen could file a complaint.
The advocate would decide whether to sue.
That filters out nearly all lawfare while ensuring genuine issues don't die simply because no obvious plaintiff exists.
What caught my attention wasn't expanding standing.
It was this:
requiring the courts to define who actually has standing whenever they dismiss for lack of standing.
That's unusual.
Currently a court often says:
"This plaintiff lacks standing."
Full stop.
Your proposal would require something like:
"Plaintiff A lacks standing because the legally cognizable injury belongs to Category B. Persons falling within Category B would ordinarily possess standing."
That has several virtues.
It creates precedent.
It tells future litigants whom Congress intended to protect.
It reduces repeated dismissals based on guessing who the proper plaintiff is.
It also prevents the government from effectively insulating actions from review by repeatedly arguing, "Not this plaintiff," without any court ever identifying who would qualify.
I also think you're right that any broader standing statute would need strong filters.
Some possibilities include:
That last requirement strikes me as especially elegant. It preserves the ordinary standing doctrine while providing a safety valve when the ordinary plaintiff simply doesn't exist.
One constitutional caveat remains. If Congress is trying to expand access to federal courts, Article III limits still apply, and the current Supreme Court has generally taken a restrictive view of standing. So while Congress can create new causes of action, designate proper plaintiffs, or authorize certain representative suits, it likely cannot simply declare that every citizen has standing to challenge any alleged illegality. citeturn0search2turn0search1
What you're describing is less "abolish standing" than "eliminate standing vacuums"—situations where a legal wrong may exist but no practically identifiable plaintiff can obtain judicial review. Existing doctrines such as qui tam actions and statutory "private attorney general" provisions show that Congress has some room to create carefully cabined enforcement mechanisms, even if that room is not unlimited. citeturn0search1turn0search2
M: To refine the question because you are almost there with what I was asking, but I guess I didn't quite provide enough to work with. There are a couple other priorities that I was trying to include. One of them is creating a situation where the courts can't simply deny standing, but must, in doing so, provide some form of indication as to who actually would have standing, whether it would be a specific group or, like what we're talking about, what population of a country would have standing. So, like, they could say that, for example, if you're trying to sue on behalf of all the citizens of Saskatchewan, they can say that someone doesn't have standing because they don't actually live anywhere near Saskatchewan. But in doing so, they have to indicate that the person bringing suit would at least have to live in Saskatchewan or have, you know, some other direct connection to the situation in accordance with the existing laws of... God damn, my vocabulary is disappearing in a sketchy way. But the laws that demonstrate standing. And perhaps just as importantly, how could you do it in a way that stays strictly within the lines of constitutional interpretation that we're using, without creating any kind of tension with the stuff that's still in there? You know that someone would bring it up to the Supreme Court anyway just because they didn't like the idea, but it needs to be made as airtight as possible in terms of actual legality.
G: I think I understand the distinction now, and it's a subtler proposal than "expand standing."
Your proposal is really about making standing determinate rather than discretionary. You're not asking Congress to tell courts who has standing in every constitutional sense. You're asking whether Congress can require courts to explain the contours of standing whenever they deny it, so litigants and future courts aren't left in a loop of "not you."
That is much closer to something Congress plausibly has authority to do.
The Supreme Court has generally said two things:
So Congress probably couldn't pass a law saying:
"Everyone has standing."
But it might be able to say something like:
"Whenever a federal court dismisses an action solely for lack of standing, the court shall identify, to the extent reasonably possible, the characteristics of a plaintiff who would satisfy Article III standing under the court's reasoning."
Notice what's happening there.
The statute isn't defining standing.
It's regulating what the opinion must contain.
Congress already tells courts they must make findings in numerous contexts. Courts routinely have statutory obligations to explain injunctions, sentencing decisions, agency-review decisions, class certification rulings, and so on. Requiring additional reasoning is much less constitutionally fraught than redefining standing itself.
Right now, standing opinions sometimes function like this:
Plaintiff A lacks standing.
The government then defeats Plaintiff B.
Then Plaintiff C.
Eventually everyone discovers nobody can get into court.
Your proposal changes the incentives.
Instead, the opinion would have to resemble:
Plaintiff lacks standing because the relevant injury is suffered by members of X class. A plaintiff who is a member of X class and satisfies the remaining Article III requirements would ordinarily possess standing.
That doesn't bind another judge absolutely.
But it creates something much harder to evade.
Congress might also require courts to distinguish among three situations.
Category 1
"No one could ever have standing because this is a nonjusticiable political question."
That's the end.
Category 2
"This plaintiff lacks standing, but identifiable plaintiffs could have standing."
The court must describe them.
Category 3
"The record is insufficient to determine whether any plaintiff could have standing."
The court explains what factual development would be necessary.
That would dramatically reduce what lawyers sometimes call the "standing shell game."
Here's one possibility I haven't seen discussed much.
Suppose the statute said:
If a court concludes the plaintiff lacks standing but identifies a class of persons who may possess standing, the court shall permit a reasonable opportunity for amendment, substitution, or intervention before dismissing the action.
That resembles existing procedural concepts.
Federal courts already allow amendment of pleadings, substitution of parties in some circumstances, and intervention. Congress could potentially encourage courts to use those mechanisms before terminating a case, rather than forcing everyone to start over from scratch.
That strikes me as more defensible than expanding standing itself because it doesn't change Article III. It changes case management.
I would avoid language like:
"The court shall identify who has standing."
Sometimes the honest answer is:
"I can't tell from this record."
Or there may genuinely be multiple possible plaintiffs.
Instead I'd frame it as:
"The court shall identify the characteristics or legal interests that would be sufficient for Article III standing under the court's reasoning, insofar as they can reasonably be determined."
That leaves room for judicial independence while still forcing useful analysis.
If I were trying to draft this to survive constitutional scrutiny, I'd focus almost entirely on procedural transparency rather than substantive standing:
That last sentence is important. It makes clear that Congress isn't telling courts who has standing. It's telling them, "If you're going to deny access to court on standing grounds, explain your reasoning with enough specificity that litigants and lower courts can understand what Article III requires in this context."
Ironically, I think that proposal is stronger than trying to broaden standing directly. It stays within the judiciary's role of interpreting the Constitution while addressing a practical problem you've identified: repeated dismissals that provide little guidance about whether anyone can obtain judicial review. It doesn't guarantee a plaintiff exists, but it reduces the risk that alleged legal violations become effectively insulated from review simply because every successive litigant has to guess who the proper plaintiff might be.
M: Importantly, it would be necessary to do so in a way that maintained maximum flexibility. Like, you don't want to create a situation in which the courts are backed into a corner, if not absolutely necessary. Like, for example, if it's difficult to tell if there actually is even a crime going on, you don't want a federal judge put into a situation where it's almost impossible to tell who would have standing simply because of the vagueness of the situation. But at the same time, you can't leave so much freedom that a biased courtroom attendee or someone presiding would be able to slip an obvious demarcation by simply by saying that someone doesn't have standing and leave it at that. I mean, one of the things that's been driving me nuts with the Supreme Court has been their shadow docket and their ability to simply deny something without actually explaining what the hell is going on. And I'm asking you in a very, uh, what's a good way of putting it? I'm asking you in a very literal sense how you would do it, not just the usual rhetorical back and forth we have. Like, I would like to see more suggestions that I can read and find fault with than get into a discussion where we're discussing what fault means, if that makes sense. You've got the, you've got much more capacity both in access to skill and documentation in terms of creating it. I can try and poke holes in what you have much more quickly and productively than us trying to debate the situation before we have anything concrete to even use as a starting point. So far, the only logical and political problem I have, like, not as in the usual term, but legislative, that's the word I was looking for. The idea of someone saying that this is something the courts can't look at kind of offends me. Like, if they can't make a ruling, they have to be able to say who can then, that kind of thing. Otherwise you have a situation where the president or even Congress basically is left unanswerable to anyone. I'm glad you brought up the permission for amendment, substitution, or intervention as well. Like, the idea that someone has done a lot of work and then finds out that because of a technicality they can't make use of it, should not create a situation in which the person who potentially offended is allowed to, you know, escape things. It leads to a situation where the priority can be made to dismiss a case on technicalities rather than answering the actual situation. In a circumstance where the defendant actually is innocent, one would think that, at least in most circumstances, they would welcome the opportunity to get this shit over with, rather than waiting for the next person to come up and decide whether or not they are going to go for the same angle, even if the previous person was dismissed on the technicality.
G: I think you're now describing something that is less a change to standing doctrine than a Federal Standing Clarification and Substitution Act—a procedural statute that leaves the constitutional test untouched but changes what courts must do when they conclude it hasn't been met.
That distinction is important because it gives the proposal a much better chance of surviving constitutional review. Congress has considerably more authority to regulate how federal courts process cases than to redefine the constitutional minimum for standing.
If I were trying to draft this as legislation rather than as an argument, I'd probably start with principles like these.
The purpose of this Act is to promote efficient judicial review, reduce unnecessary repetitive litigation, and facilitate identification of proper plaintiffs without altering the constitutional requirements of Article III standing.
That sentence does a lot of work. It tells every reviewing court:
"We are not changing standing."
Whenever standing is denied, the court must identify which element failed.
Not:
Plaintiff lacks standing.
Instead:
Plaintiff has not demonstrated injury in fact.
or
Plaintiff has not demonstrated causation.
or
Plaintiff has not demonstrated redressability.
That forces precision.
This is the heart of your idea.
Something like:
To the extent reasonably practicable, the court shall identify the characteristics of persons or entities who could satisfy the standing requirements under the court's analysis.
Notice the wording.
Not:
who do have standing.
But:
who could satisfy standing.
That preserves flexibility.
Then immediately afterward:
Nothing in this subsection shall require a court to determine that any presently existing person satisfies those characteristics.
That's important.
Sometimes the honest answer is:
Maybe nobody does.
Congress shouldn't force judges to invent a plaintiff.
This addresses the concern you just raised.
Suppose the facts are too undeveloped.
The court could write:
The present record is insufficient to determine what class of plaintiff would possess standing.
But—
the statute should require an explanation.
For example:
because the factual record has not established whether the challenged action has produced a legally cognizable injury.
That's much different from:
Standing denied.
End of opinion.
I actually think this is your strongest idea.
Rather than immediate dismissal:
The court should ask:
Can this defect reasonably be fixed?
If yes,
allow:
amendment
intervention
substitution
within a reasonable period.
Only then dismiss.
This resembles existing federal practice rather than creating something alien.
Obviously defendants have rights too.
So I'd put limits.
Maybe:
One opportunity.
90 days.
No fishing expedition.
If nobody appears,
dismissal becomes final.
This one matters constitutionally.
You don't want courts effectively writing legal advice.
So I'd write something like:
The descriptions required by this Act are explanatory findings only and shall not constitute advisory opinions concerning hypothetical future litigants.
That reassures courts they're still deciding only the case before them.
You said something that I think deserves to be formalized:
litigation should not fail merely because the wrong plaintiff arrived first.
That could become something like:
When dismissal is based solely upon the identity of the plaintiff rather than the legal sufficiency of the claim itself, dismissal should ordinarily be without prejudice, and the court should, where practicable, facilitate substitution or intervention by a proper party before terminating the action.
That shifts the focus from:
Wrong plaintiff.
to
Is there a proper plaintiff available?
You said:
If they can't make a ruling, they have to be able to say who can.
I think I'd soften that.
Not because your concern is illegitimate, but because there really are situations where the judiciary cannot honestly answer that question.
For example, suppose a statute has never actually been enforced. Someone sues claiming they might be injured someday. A court may conclude there is no present injury, but it may genuinely be impossible to identify who, if anyone, will eventually suffer one. Requiring the court to name a future plaintiff could force speculation.
Instead, I'd write something like:
The court shall identify a potential class of plaintiffs where reasonably ascertainable. If no such class can presently be identified, the court shall explain why identification is not presently possible.
That preserves judicial honesty while preventing a one-line dismissal.
This one isn't about standing itself.
It's about appellate review.
Imagine requiring:
Every dismissal for lack of standing must contain sufficient findings to permit meaningful appellate review.
That sounds almost boring.
But it has teeth.
Appellate courts hate reviewing opinions that don't explain their reasoning.
By making explanation itself a statutory requirement, you're increasing transparency without dictating the outcome.
Stepping back, I think the common thread running through your proposal is a shift in the burden placed on the judiciary. Today, when standing is denied, the burden largely falls on the plaintiff to guess what went wrong and whether anyone else could succeed. Your proposal would require the court, within the limits of the record, to make its reasoning explicit enough that the next step is intelligible. It wouldn't compel a judge to invent a plaintiff or decide hypothetical cases, but it would make "standing" a doctrine that guides future litigants rather than a dead end that merely terminates the current one.
One final observation: I suspect a proposal like this would draw support and criticism from across the ideological spectrum, but for different reasons. The constitutional debate would probably center less on standing itself and more on whether Congress can prescribe the required contents of judicial opinions. Congress already imposes explanatory requirements in a variety of procedural contexts, which is an argument in favor of such a statute. At the same time, some judges would likely argue that detailed opinion-writing requirements intrude on the judiciary's control over its own decisional processes. That tension is probably where the real constitutional litigation would occur—not over Article III standing directly, but over the extent of Congress's authority to require a certain level of explanation from federal courts.