Uncertain Enforcement and Standing to Sue

Authors

• Ernest A. Young, Duke Law SchoolFollow

Document Type

Article

Publication Date

2026

Keywords

standing, Article III, ripeness, injury, S.B. 8

Abstract

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to do too much by roping in legitimate concerns about courts’ ability to decide cases competently prior to enforcement and the urgency of pre-enforcement relief that are better handled by the law of ripeness and remedies.

This Article demonstrates that standing doctrine already recognizes many injuries apart from enforcement sanctions. If the plaintiff complies with a law that prohibits or requires activity against the plaintiff’s wishes, that constitutes injury in fact. And to the extent that a legal mandate causes injury without need for further enforcement action, a proper defendant for a challenge to the law need only have authority to defend the statute—not enforce it. This insight avoids causation and redressability problems in uncertain enforcement scenarios, and it obviates the procedural hurdles raised by statutes delegating enforcement to unidentified private actors. The Article illustrates these principles by using Texas’s anti-abortion law as a case study.

Citation

Ernest A. Young, Uncertain Enforcement and Standing to Sue, 106 Boston University Law Review 915-976 (2026)