Zone-of-Interests Standing in Constitutional Cases after Lexmark

In addition to satisfying Article III’s standing requirements, the U.S. Supreme Court has long included, as one of its non-constitutional “prudential” standing rules, a requirement that plaintiffs demonstrate that their claim is within the “zone of interests” protected by a statute or constitutional provision. In a recent case, Lexmark International, Inc. v. Static Control Components, Inc., the Court disavowed zone-of-interests standing in statutory cases. After Lexmark, courts need only determine whether a particular statute authorizes a plaintiff’s cause of action. If it does, the Court held, then courts are not free to prevent a plaintiff from bringing a claim out of prudential concerns. This paper asks whether zone-of-interests standing should be retained in constitutional cases, an issue not before the Court in Lexmark. We conclude that it should not be; the Court should pursue Lexmark to its logical conclusion and eliminate zone-of-interests standing entirely. After charting the course of the zone of interests test in statutory cases from its inception to the Court’s disavowal of it in Lexmark, we examine the role it has played in constitutional cases in the Supreme Court and in the lower courts. We argue that (1) zone-of-interests standing rests on a constitutionally-dubious foundation; (2) existing doctrines better perform whatever useful functions the test was thought to serve; and (3) that the practical difficulties that bedeviled the Court’s application of the test in statutory cases remain and multiply in constitutional cases. We also consider, but reject, arguments that the test is useful for preventing courts from being flooded with certain constitutional claims or that it ought to be retained, but only for a few constitutional claims, like dormant Commerce Clause challenges.