Amicus Curiae Brief — National Park Service, et al., Applicants v. National Trust for Historic Preservation in the United States

No. 26A203

IN THE

Supreme Court of the United States

NATIONAL PARK SERVICE, ET AL,

Applicants,

v.

NATIONAL TRUST FOR HISTORIC PRESERVATION IN THE UNITED STATES,

Respondent.

On Application for a Stay of the Injunction

Issued by the United States District Court for the District of Columbia

and Request for an Immediate Administrative Stay

BRIEF OF INDIANA, IDAHO, 17 OTHER STATES, AND THE ARIZONA

LEGISLATURE AS AMICI CURIAE IN SUPPORT OF APPLICANTS

RAÚL R. LABRADOR

Attorney General of Idaho

MICHAEL A. ZARIAN

Solicitor General of Idaho

Office of the Attorney General

700 W. Jefferson St. Ste. 210

Boise, ID 83720

(208) 334-2400

michael.zarian@ag.idaho.gov

Counsel for the State of Idaho

THEODORE E. ROKITA

Attorney General of Indiana

JAMES A. BARTA

Solicitor General of Indiana

Counsel of Record

ROBERT M. BELDEN

Deputy Solicitor General

DENISHA CHETTY

Deputy Attorney General

Office of the Attorney General

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-0709

James.Barta@atg.in.gov

Counsel for State of Indiana

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

INTRODUCTION AND INTEREST OF AMICI CURIAE........................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 2

ARGUMENT .................................................................................................................. 3

I.

Associational Standing Erodes the Separation of Powers................................. 3

II.

Associational Standing Has No Historical Pedigree. ........................................ 8

III.

Associational Standing Inevitably Becomes Limitless .................................... 12

IV.

The Court Should Revisit Associational Standing While Clarifying a

Passerby’s Offense Does Not Constitute a Cognizable Injury ....................... 18

CONCLUSION............................................................................................................. 21

i

TABLE OF AUTHORITIES

CASES

Adland v. Russ,

307 F.3d 471 (6th Cir. 2002) .................................................................................. 19

Allen v. Wright,

468 U.S. 737 (1984) .................................................................................................. 4

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) (Gorsuch, J., concurring)................................................... 18, 19

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................................................................. 3

Ass’n of Am. Physicians & Surgeons v. FDA,

13 F.4th 531 (6th Cir. 2021) (Sutton, J.) ....................................................... 1, 5, 12

Broadrick v. Oklahoma,

413 U.S. 601 (1973) .................................................................................................. 8

Citizens Coal Council v. Matt Canestrale Contracting, Inc.,

40 F. Supp. 3d 632 (W.D. Pa. 2014) ....................................................................... 15

City of Ocala, Fla. v. Rojas,

143 S. Ct. 764 (2023) (statement of Gorsuch, J., respecting denial of

certiorari) ................................................................................................................ 19

Clark v. Kansas City,

176 U.S. 114 (1900) .................................................................................................. 5

Clinton v. City of New York,

524 U.S. 417 (1998) (Kennedy, J., concurring) ...................................................... 17

Columbia Basin Apartment Ass’n v. City of Pasco,

268 F.3d 791 (9th Cir. 2001) .................................................................................. 15

Conservation L. Found., Inc. v. Acad. Express, LLC,

129 F.4th 78 (1st Cir. 2025) ............................................................................. 15, 16

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ........................................................................................... 16, 17

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) (Thomas, J., concurring)

............................................................................ 1, 2, 4, 7, 8, 9, 10, 11, 12, 15, 18, 20

ii

CASES [CONT’D]

Fink v. Campbell,

70 F. 664 (6th Cir. 1895) .......................................................................................... 9

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000) (Scalia, J., dissenting) ........................................................... 12

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig.,

55 F.3d 768 (3d Cir. 1995) ........................................................................................ 7

Hollingsworth v. Perry,

570 U.S. 693 (2013) .......................................................................................... 16, 20

Humane Soc’y of the U.S. v. Hodel,

840 F.2d 45 (D.C. Cir. 1988) ............................................................................ 13, 14

Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333 (1977) ............................................................................................ 9, 13

Indiana Civil Liberties Union Inc. v. O’Bannon,

110 F. Supp. 2d 842 (S.D. Ind. 2000) ..................................................................... 19

Indus. Energy Consumers of Am. v. FERC,

125 F.4th 1156 (D.C. Cir. 2025) (Henderson, J., concurring) ........................... 2, 11

Kerrison v. Stewart,

93 U.S. 155 (1876) .................................................................................................... 9

Kondrat’yev v. City of Pensacola,

949 F.3d 1319 (11th Cir. 2020) (Newsom, J., concurring) .................................... 19

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ................................................................................................ 14

Lance v. Coffman,

549 U.S. 437 (2007) ................................................................................................ 15

League of Women Voters of Mass. v. Trump, et al.,

No. 1:26-CV-11549-IT, 2026 WL 2322705 (D. Mass. Aug. 11, 2026)...................... 6

Lemon v. Kurtzman,

403 U.S. 602 (1971) ................................................................................................ 19

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .................................................................................................. 5

iii

CASES [CONT’D]

Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise,

Inc.,

501 U.S. 252 (1991) .................................................................................................. 4

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ................................................................................................ 10

Nat’l Tr. for Historic Pres. in the United States v. Nat’l Park Serv.,

No. 26-5123, 2026 WL 2276494 (D.C. Cir. Aug. 7, 2026) .......................... 12, 13, 18

National Motor Freight Traffic Ass’n v. United States,

372 U.S. 246 (1963) (per curiam) ..................................................................... 10, 11

NetChoice v. Carr,

789 F. Supp. 3d 1200 (N.D. Ga. 2025) ..................................................................... 6

Nuziard v. Minority Bus. Dev. Agency,

721 F. Supp. 3d 431 (N.D. Tex. 2024) .................................................................... 17

Powers v. Ohio,

499 U.S. 400 (1991) .................................................................................................. 9

Presidio Golf Club v. Nat’l Park Serv.,

155 F.3d 1153 (9th Cir. 1998) ................................................................................ 13

Raines v. Byrd,

521 U.S. 811 (1997) ...................................................................................... 4, 11, 16

Red River Freethinkers v. City of Fargo,

679 F.3d 1015 (8th Cir. 2012) ................................................................................ 18

Rucho v. Common Cause,

588 U.S. 684 (2019) .................................................................................................. 4

Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll.,

600 U.S. 181 (2023) .................................................................................................. 5

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .......................................................................................... 3, 5, 7

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ........................................................................................ 2, 4, 20

iv

CASES [CONT’D]

Trump v. CASA, Inc.,

606 U.S. 831 (2025) .................................................................................................. 6

Trump v. Hawaii,

585 U.S. 667 (2018) (Thomas, J., concurring) ...................................................... 5, 6

United States v. Richardson,

418 U.S. 166 (1974) (Powell, J., concurring) ........................................................... 4

Valley Forge Christian Coll. v. Ams. United for Separation of Church &

State, Inc.,

454 U.S. 464 (1982) ...................................................................................... 1, 16, 17

Vazquez Perdomo v. Noem,

148 F.4th 656 (9th Cir. 2025) ................................................................................. 14

Warth v. Seldin,

422 U.S. 490 (1975) .................................................................................... 5, 7, 9, 11

Whitmore v. Arkansas,

495 U.S. 149 (1990) .................................................................................................. 8

Whole Woman’s Health v. Hellerstedt,

579 U.S. 582 (2016) (Thomas, J., dissenting) .......................................................... 9

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) (Jackson, J., concurring) ......................................................... 4

STATUTES

54 U.S.C. § 312102(a) .................................................................................................. 14

54 U.S.C. § 312102(b) .................................................................................................. 14

OTHER AUTHORITIES

Antonin Scalia, The Doctrine of Standing as an Essential Element of

the Separation of Powers, 17 Suffolk U. L. Rev. 881, 881–84 (1983) ................... 17

Curtis A. Bradley & Ernest A. Young, Unpacking Third-Party

Standing, 131 Yale L.J. 1, 5, 69 (2021) ................................................................. 11

v

OTHER AUTHORITIES [CONT’D]

Fed. R. Civ. P 23(a) ........................................................................................................ 7

Fed. R. Civ. P. 23(b) ....................................................................................................... 7

Fed. R. Civ. P. 23(b)(3) ................................................................................................... 6

Fed. R. Civ. P. 23(c)(2)(B)(v) .......................................................................................... 6

Fed. R. Civ. P. 23(c)(2)(B)(vii)........................................................................................ 6

Michael T. Morley & F. Andrew Hessick, Against Associational

Standing, 91 U. Chi. L. Rev. 1539, 1593 (2024) ........................ 5, 6, 11, 12, 16, 17, 20

Heather Elliott, Associations and Cities as (Forbidden) Pure Private

Attorneys General, 61 WM. & MARY L. REV. 1329, 1333 (2020) ........................ 12, 13

1 William Blackstone, Commentaries ........................................................................... 8

vi

INTRODUCTION AND INTEREST OF AMICI CURIAE

This case is about more than a ballroom. It is about whether a passerby’s

aesthetic objection to a government construction project furnishes not just the

passerby standing, but an uninjured association standing to air its grievances in

court. That issue is of significant interest to States across the Nation.

Amici States have extensive experience litigating against organizations that

invoke associational standing as their ticket into court. They regularly find

themselves having to defend all manner of laws, executive actions, and public

improvements against claims brought by uninjured associations. And their

experience reveals a lesson that this dispute also illustrates—associational standing

has become a near limitless doctrine that allows virtually any organization to sue

about anything. This Court can and should make clear that a passerby’s aesthetic,

psychic, or political objection to a government action is “not an injury sufficient to

confer standing.” Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 477 (1982). But the Court also should use this

opportunity to reconsider the validity of associational standing.

This Court has “never explained or justified” associational standing. FDA v.

All. for Hippocratic Med., 602 U.S. 367, 398 (2024) (Thomas, J., concurring).

Associational standing appears to have developed by “historical accident” in the

United States Supreme Court in the middle of the 20th century. Ass’n of Am.

Physicians & Surgeons v. FDA, 13 F.4th 531, 538 (6th Cir. 2021) (Sutton, J.). But

associational standing’s cracks have begun to show. Members of this Court and others

1

have begun to question the propriety of associational standing, explaining that it

“runs roughshod over [the] traditional understanding of the judicial power.” All. for

Hippocratic Med., 602 U.S. at 399 (Thomas, J., concurring); see Indus. Energy

Consumers of Am. v. FERC, 125 F.4th 1156, 1167 (D.C. Cir. 2025) (Henderson, J.,

concurring). And associational standing’s incompatibility with limits on universal

injunctions and other legal doctrines is becoming increasingly apparent.

As States with an interest in preserving the proper separation of powers

nationwide, Amici States urge this Court to take this opportunity to reconsider

associational standing. Perpetuating it will only distort the judicial role. As Amici

States have witnessed firsthand, associational standing inevitably tends to convert

courts from venues where actual controversies are resolved between adverse litigants

into debate societies where interest groups raise generalized grievances and ask

judges to “exercise general legal oversight of the Legislative and Executive Branches.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423–24 (2021). This Court should

recommit the judiciary to its proper constitutional role.

SUMMARY OF THE ARGUMENT

The Constitution demands that the party invoking federal jurisdiction have

suffered a cognizable injury. Associational standing, the theory that the National

Trust for Preservation invokes, conflicts with this foundational requirement. It excuses a plaintiff from showing injury and creates other doctrinal incongruences.

Neither history nor this Court’s precedent offers a coherent justification for

associational standing. Associational standing is a historical anomaly, and appears

to have arisen through historical accident. This Court has not provided a reasoned

2

defense of associational standing either, which even compared to other theories of

third-party standing, remains an outlier.

Although this Court has tried to limit associational standing, associational

standing tends to become limitless in practice. This case puts the problem on full

display. Not only was the Trust able to assert an interest in managing a property

outside of the scope of its congressional mandate, but it also was able to base its

standing on a single member’s displeasure with a government construction project.

To associational standing’s many problems, this case also presents a solution.

It provides an ideal opportunity to reexamine the doctrine and to establish that an

uninjured association cannot invoke federal jurisdiction based on a lone member’s

aesthetic, political, or moral displeasure.

ARGUMENT

I.

Associational Standing Erodes the Separation of Powers

“[T]he separation of powers in our National Government ha[s its] principal

foundation in the first three Articles of the Constitution,” and “[u]nder Article III, the

Federal Judiciary is vested with the ‘Power’ to resolve not questions and issues but

‘Cases’ or ‘Controversies,’” which “restricts the federal judicial power to the traditional role of the Anglo–American courts.” Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125, 132 (2011) (citation modified). “[T]he traditional role of Anglo–American courts [ ] is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.” Summers v. Earth Island Inst., 555

U.S. 488, 492 (2009). “The ultimate purpose of this separation of powers is to protect

3

the liberty and security of the governed,” Metro. Wash. Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991), by “diffus[ing] power”

among the three branches, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

635 (1952) (Jackson, J., concurring).

Courts have developed the doctrine of standing to ensure that they exercise

only the judicial power. Raines v. Byrd, 521 U.S. 811, 820 (1997) (“Standing is built

on a single basic idea—the idea of separation of powers”) (quoting Allen v. Wright,

468 U.S. 737, 752 (1984)). Standing, of course, requires a plaintiff to show “(i) that he

suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii)

that the injury was likely caused by the defendant; and (iii) that the injury would

likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423

(2021) (citation modified). The doctrine of standing represents an acknowledgement

that “courts do not exercise general legal oversight of the Legislative and Executive

Branches.” Id. at 423–24; United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) (“Relaxation of standing requirements is directly related to the

expansion of judicial power.”). For an “unelected and politically unaccountable” judiciary to wield such power would create the threat to individual liberty and proper

“democratic principles” that the separation of powers is designed to prevent. Rucho

v. Common Cause, 588 U.S. 684, 719 (2019).

Allowing an organization to sue based on associational standing, however,

“run[s] roughshod over [the] traditional understanding of the judicial power.” FDA v.

All. for Hippocratic Med., 602 U.S. 367, 399 (2024) (Thomas, J., concurring).

4

Fundamentally, associational standing exceeds the limits of the judicial power

because it dispenses with the “key” requirement that the “plaintiff identify a personal

injury.” Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 534 (6th Cir. 2021)

(citation modified). “[T]he irreducible constitutional minimum of standing” requires

that “the plaintiff must have suffered an ‘injury in fact.’” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992); see Clark v. Kansas City, 176 U.S. 114, 118 (1900) (the courts

will “not listen to an objection made to the constitutionality of an act by a party whose

rights it does not affect and who has therefore no interest in defeating it”) (citation

modified); Michael T. Morley & F. Andrew Hessick, Against Associational Standing,

91 U. Chi. L. Rev. 1539, 1593 (2024) (“A basic tenet of the English legal system was

that only a person who had suffered injury could seek a remedy for that harm.”).

Associational standing, however, empowers an organization to bring an action “[e]ven

in the absence of injury to itself,” Warth v. Seldin, 422 U.S. 490, 511 (1975), as long

as “one identified member” has been injured, Summers, 555 U.S. at 498; see also Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181,

199 (2023) (“[T]he organization can claim that it suffered an injury in its own right

or, alternatively, it can assert ‘standing solely as the representative of its members.’”

(quoting Warth, 422 U.S. at 511)).

And that’s not the only incongruence associational standing creates—the mismatch between who is injured and who is a party in court redounds to an equally

problematic mismatch on the remedy front. “[A]s a general rule, American courts of

equity did not provide relief beyond the parties to the case.” Trump v. Hawaii, 585

5

U.S. 667, 717 (2018) (Thomas, J., concurring); see Trump v. CASA, Inc., 606 U.S. 831,

851–52 (2025) (historical equitable principles allow courts to provide “complete relief

to the plaintiffs before the court”) (emphasis omitted). But associational standing allows organizations to procure relief for members who are not before the court. In fact,

courts often grant relief to all an organization’s members (and sometimes its future

members), regardless of whether they are injured. See, e.g., NetChoice v. Carr, 789 F.

Supp. 3d 1200, 1213–16, 1234 (N.D. Ga. 2025) (finding associational standing and

awarding injunction covering the association’s members’ users); League of Women

Voters of Mass. v. Trump, et al., No. 1:26-CV-11549-IT, 2026 WL 2322705, at *9, *13

(D. Mass. Aug. 11, 2026) (finding associational standing “because the [executive order] . . . threatens Plaintiffs’ members’ ability to vote” and enjoining all implementation of the order).

Associational standing also raises thorny questions about who is bound by a

decision. See Morley & Hessick, supra, at 1546. Indeed, the opportunity for an organization’s members to obtain relief in associational standing cases may not even be

accompanied by a risk that their individual claims will be precluded if the organization is unsuccessful. Unlike a class action where each putative class member is given

notice that their claim is being raised in court and an opportunity to opt out lest they

be bound by the results of the class action, Fed. R. Civ. P. 23(b)(3), (c)(2)(B)(v),

(c)(2)(B)(vii), organizational members never become a party to litigation and may

never be informed of litigation. Thus, “it is not clear whether the adverse judgment

would bind the members,” meaning they may have “two bites at the apple” and be

6

able to “assert the exact same issues or claims in a suit in their own names” if the

organization is unsuccessful. All. for Hippocratic Med., 602 U.S. at 403 (Thomas, J.,

concurring).

“[T]he availability of associational standing subverts the class-action mechanism.” All. for Hippocratic Med., 602 U.S. at 402 (Thomas, J., concurring). To litigate

by class action, a plaintiff must establish a discernable class exists, satisfy the requirements of typicality and commonality, show the plaintiff is an adequate class

representative, and prove the class is proper under Rule 23(b). See Fed. R. Civ. P

23(a)–(b). None of that is true in cases involving associational standing. An association need not show anything more than injury to “one identified member” and that

the claim is germane to the organization’s purpose and does not require individual

participation. Summers, 555 U.S. at 498; see Warth, 422 U.S. at 511. Gone is the need

to establish that the member’s injuries are like that of other members’ or that, for

example, the class’s injuries are so cohesive that a single injunction can provide relief.

That not only removes any incentive to pursue a class action, All. for Hippocratic

Med., 602 U.S. at 402, (Thomas J., concurring), but it also deprives the judiciary of

the assurance that a featured member is a good representative of those allegedly

harmed by a government action and for whom relief is sought, In re Gen. Motors Corp.

Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995) (explaining “the procedural requirements of Rule 23” were designed “so that the court can

assure, to the greatest extent possible, that the actions are prosecuted on behalf of

the actual class members in a way that makes it fair to bind their interests”).

7

Associational standing therefore allows uninjured parties to challenge state

laws and government actions to procure relief for (potentially many) individuals who

are not before the court, without those individuals necessarily having to be bound by

the result. Simply put, that does not resemble the traditional exercise of the judicial

power at all. Instead, it looks like courts that have become “roving commissions assigned to pass judgment on the validity of the Nation’s [or State’s] laws.” Broadrick

v. Oklahoma, 413 U.S. 601, 610–11 (1973).

II.

Associational Standing Has No Historical Pedigree

These anomalies might be tolerable if associational standing’s deviation from

ordinary adjudicatory principles were rooted in a Framing-era practice or were traditionally understood to be within the judicial power. But associational standing can

claim no historical pedigree and “has never [been] explained or justified” as a historical matter by this Court. All. for Hippocratic Med., 602 U.S. at 398 (Thomas, J., concurring). In fact, associational standing looks nothing like other doctrines that have

authorized plaintiffs to bring claims on behalf of injured third parties.

Consider next-friend litigation, which traces its lineage back to the common

law. 1 William Blackstone, Commentaries *452 (explaining that an infant could sue

through a guardian or “prochein amy, his next friend”) (emphasis added). In these

cases, a plaintiff—generally one with a “significant relationship” with a minor or disabled person—may litigate on that person’s behalf, but the next friend must be “truly

dedicated to the best interests” of the claimant and “does not himself become a party.”

Whitmore v. Arkansas, 495 U.S. 149, 163–64 (1990). By contrast, associational

8

standing (1) requires only a loose membership relationship, (2) does not mandate that

the injured member be a minor or disabled, and (3) allows organizations to become a

party and pursue their own interests. See Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333, 343–45 (1977); All. for Hippocratic Med., 602 U.S. at 401 n.3 (Thomas,

J., concurring) (“Associations may have very different interests from the individuals

whose rights they are raising.”) (citation modified). Other historical examples are

similarly far afield. See Fink v. Campbell, 70 F. 664, 666–687 (6th Cir. 1895) (coverture); Kerrison v. Stewart, 93 U.S. 155, 160 (1876) (“[U]nder some circumstances, a

trustee may represent his beneficiaries.”).

Associational standing also does not track this Court’s ordinary “third-party

standing” doctrine either, which itself has no historical roots. See Whole Woman’s

Health v. Hellerstedt, 579 U.S. 582, 630 (2016) (Thomas, J., dissenting) (“For most of

our Nation’s history, plaintiffs could not challenge a statute by asserting someone

else’s constitutional rights.”). Third-party standing requires that the plaintiff suffer

his own injury in fact, that he have a close relationship with the right-holder, and

that there be some hindrance preventing the third party from protecting his own interests. Powers v. Ohio, 499 U.S. 400, 411 (1991). Associational standing discards

each of those requirements—it permits an association to sue (1) “solely as the representative of its members” even without its own injury, (2) on behalf of members it

barely knows, (3) even if the member could bring their own suit. Warth, 422 U.S. at

511.

9

The reason associational standing does not track any of these doctrines (or

class-action litigation) is likely that it appears to have developed unintentionally—

certainly without careful explanation.

For more than 150 years, this Court recognized no doctrine permitting an uninjured association to sue solely on behalf of its members. All. for Hippocratic Med.,

602 U.S. at 403 (Thomas, J., concurring). The first step toward associational standing

came in 1958, when this Court allowed the NAACP to sue to prevent the disclosure

of its membership lists. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

Even there, the organization had arguably suffered an injury of its own—the challenged order directly injured the NAACP because disclosure threatened its membership and financial support. Id. at 458–60. The organization’s interests were also “in

every practical sense identical” to its members’, and the members could not sue without revealing their identities and thereby causing “nullification of the right at the

very moment of its assertion.” Id. at 459. In other words, the case coincided with the

Court’s ordinary (yet still ahistorical) third-party standing requirements.

But the Court transformed organizations’ ability to sue on behalf of their members beyond recognition just five years later in National Motor Freight Traffic Ass’n

v. United States, 372 U.S. 246, 247 (1963) (per curiam), when it declared with no

explanation in a one-paragraph order denying rehearing that motor-carrier associations could challenge an agency order because their members were aggrieved and the

associations were “proper representatives of the interests of their members.” 372 U.S.

246, 247 (1963) (per curiam). The Court identified no injury to the associations nor

10

any obstacle preventing the carriers from suing in their own names. See id. at 246–

47.

That unexplained departure evolved into modern associational standing. Five

years later, the Court relied on Motor Freight to announce that, “[e]ven in the absence

of injury to itself, an association may have standing solely as the representative of its

members.” Warth, 422 U.S. at 511. But once again, the Court supplied no constitutional justification. In fact, “[t]o date, the Court has provided only practical reasons

for its doctrine.” All. for Hippocratic Med., 602 U.S. at 403 (Thomas, J., concurring);

see Indus. Energy Consumers of Am. v. FERC, 125 F.4th 1156, 1169–70 (D.C. Cir.

2025) (Henderson, J., concurring) (agreeing and arguing the time for reexamining it

is “overdue”); Morley & Hessick, supra, at 1546 n.37 (“[T]hird-party standing requirements in general, and associational standing in particular, are not constitutional doctrines.”); Curtis A. Bradley & Ernest A. Young, Unpacking Third-Party Standing, 131

Yale L.J. 1, 5, 69 (2021) (“It is unclear why, in these circumstances, an organization

should be able to rely on its member’s injury to establish Article III standing.”).

The Court should clarify that the judiciary’s constitutional role is to wield only

the “judicial power”—i.e., the power to resolve disputes that are “traditionally

thought to be capable of resolution through the judicial process.” Raines, 521 U.S. at

819 (citation modified). As even a cursory review of the contours and history of associational standing shows, the doctrine has no place within the traditional judicial

role. All. for Hippocratic Med., 602 U.S. at 403 (Thomas, J., concurring) (stating that

in creating associational standing, “the Court departed from [the] traditional

11

understanding [of the judicial power] without explanation, seemingly by accident”);

Ass’n of Am. Physicians & Surgeons, 13 F.4th at 542 (“[I]t is hard to see how the

Supreme Court’s more recent caselaw on standing has not undercut its associationalstanding test.”); Morley & Hessick, supra, at 1540 (associational standing is “a largely

unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system”). The Court should take this opportunity to reject associational standing and reinforce fidelity to the constitutional

structure.

III.

Associational Standing Inevitably Becomes Limitless

Associational standing’s threat to the separation of powers and the judicial role

is not static, either. In much the same way that third-party standing grew into associational standing, courts inevitably expand the scope of associational standing until

it provides little check at all on organizations’ ability to bring claims in court. This

expansion “take[s] the courts far beyond their” prescribed role and converts them into

“roving enforcers of the law,” Heather Elliott, Associations and Cities as (Forbidden)

Pure Private Attorneys General, 61 WM. & MARY L. REV. 1329, 1333 (2020), thereby

creating “grave implications for democratic governance,” Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 202 (2000) (Scalia, J., dissenting).

This case is a perfect example: The National Trust for Historic Preservation, a

congressionally chartered nonprofit, brought suit to block a ballroom’s construction

because a single member asserts her “enjoy[ment]” of the White House “will be impaired . . . by the construction on the East Wing’s former site of a ballroom.” Nat’l Tr.

12

for Historic Pres. in the United States v. Nat’l Park Serv., No. 26-5123, 2026 WL

2276494, at *14 (D.C. Cir. Aug. 7, 2026). The organization asserted no other injury.

Id. at *12–18. And the Trust’s member did not even say that she wants to use the

space where the ballroom will be; she just does not want to see it. See id. at *14. Even

so, the D.C. Circuit allowed the Trust to stop an in-progress federal project because a

single member claimed she will suffer injury from, once a month, seeing a building

she does not like. See id. at *2, *19–22. If that asserted injury gives the Trust standing, then it is hard to see how any organization cannot sue over any public project.

In theory, of course, this Court has placed some limits on associational standing. An association may only sue on behalf of its members if “(a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.”

Hunt, 432 U.S. at 343. But none of these three requirements serves as a meaningful

limitation on the doctrine, as Amici States’ experiences and this case illustrate.

Take the germaneness requirement. Many federal courts describe the requirement that the association protect interests “germane” to its purpose as “undemanding.” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1159 (9th Cir. 1998); see

Elliott, supra, at 1357 (collecting cases). “[G]ermaneness” has been understood to require “mere pertinence between litigation subject and organizational purpose.” Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 58–59 (D.C. Cir. 1988) (collecting cases).

And because an organization’s purpose is typically self-authored, organizations will

13

often craft their purpose broadly to maximize potential germaneness. E.g., Vazquez

Perdomo v. Noem, 148 F.4th 656, 677 (9th Cir. 2025) (finding associations’ “institutional goals to protect a broad range of rights for their members is sufficient for purposes of establishing associational standing” (citation modified)).

This case brings the lax nature of the germaneness requirement into sharp

relief. Congress created the Trust and set its purposes by statute. See 54 U.S.C.

§§ 312102(a)–(b). Those purposes are to “(1) receive donations of sites, buildings, and

objects significant in American history and culture; (2) preserve and administer the

sites, buildings, and objects for public benefit; (3) accept, hold, and administer gifts

of money, securities, or other property of any character for the purpose of carrying

out the preservation program; and (4) execute other functions vested in the National

Trust by this chapter.” § 312102(b). Ordinarily, the Trust, like any other congressionally created entity, would be strictly bound to its statutory purposes. La. Pub. Serv.

Comm’n v. FCC, 476 U.S. 355, 374 (1986). But here, the D.C. Circuit allowed the

organization to venture beyond its four prescribed purposes so far that the Trust can

now manage White House’s appearance through litigation. If organizations can use

associational standing to circumvent even Congress’s express limits on an organization’s purposes, this prong of the test is no limit at all.

Associational standing’s third requirement—that a claim does not require the

participation of individual members—likewise serves as no obstacle in countless cases.

Organizations that invoke associational standing often seek to enjoin state law or other

government action to the broadest extent, and raise facial claims requesting “injunctive

14

and declaratory relief” that “do not require individualized proof” relating to any particular member. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th

Cir. 2001). Ironically, thanks to associational standing, it is precisely because their

claims are so abstract that they are more likely to be adjudicated in court. But see Lance

v. Coffman, 549 U.S. 437, 439 (2007) (this Court “has a lengthy pedigree” of refusing to

“serve as a forum for generalized grievances”).

Because the germaneness and individual participation requirements are negligible, the associational standing analysis in practice often turns solely on whether

the association has a single member who satisfies Article III’s injury-in-fact requirement. But large, eager associations generally have no difficulty surmounting that requirement either. Organizations of all stripes in the United States have millions of

members, yet they must find only one injured person among their ranks to establish

standing to raise their ideological objections to a state law or government action. The

pool of potential injured members grows exponentially when the members of an association are themselves associations—courts in those cases generally allow the

plaintiff organization to use an injured member two levels deep. See All. for Hippocratic Med., 602 U.S. at 400 (Thomas, J., concurring).

And organizations who can’t find an injured member are often allowed to recruit someone who has already been injured and invoke that person’s injury in court.

E.g., Citizens Coal Council v. Matt Canestrale Contracting, Inc., 40 F. Supp. 3d 632,

642–43 (W.D. Pa. 2014). Some courts have even allowed organizations to rely on the

injury of a member recruited after the case began. E.g., Conservation L. Found., Inc.

15

v. Acad. Express, LLC, 129 F.4th 78, 85 (1st Cir. 2025); Morley & Hessick, supra, at

1561 (“It is often fairly easy for an organization that wishes to pursue a particular

claim to identify a member, or recruit a new member, who has suffered the requisite

injury to satisfy this element.”).

The three associational standing requirements therefore do little to prevent

those with abstract objections to public policy from turning the courts into “a vehicle

for the vindication of value interests.” Hollingsworth v. Perry, 570 U.S. 693, 707

(2013) (citation modified). These requirements on their face are not particularly demanding, and in practice are frequently watered down even further.

Federal courts’ permissive approach to associational standing may be explainable by judges’ “natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and efficiency.” Raines, 521 U.S. at

820. The tendency of courts to treat standing as “merely a troublesome hurdle to be

overcome if possible so as to reach the ‘merits’ of a lawsuit” only increases the more

feeling a dispute evokes. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 476 (1982). So too in cases in which

plaintiffs invoke associational standing, which frequently involve ideologically motivated interest groups challenging consequential government actions. Associational

standing is therefore likely to be diluted, just as other third-party standing doctrines

have been twisted in the past. See Dobbs v. Jackson Women’s Health Org., 597 U.S.

215, 287 (2022) (“The Court’s abortion cases have diluted the strict standard for facial

16

constitutional challenges. They have ignored the Court’s third-party standing doctrine.”).

But in Amici States’ experience, the effects of associational standing run even

deeper. As high-profile litigation tends to repeatedly center around large organizations and real injured citizens are reduced to a checkbox for these organizations to

pursue their claims, courts instinctively drift away from viewing their role as using

the judicial power to resolve concrete cases and controversies. Instead, they begin to

see their role as “ombudsmen of the general welfare.” Valley Forge, 454 U.S. at 487.

The result is “inevitably . . . an overjudicialization of the processes of self-governance”

that was never intended by the Framers of the United States Constitution. Antonin

Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881, 881–84 (1983); see Nuziard v. Minority Bus. Dev. Agency,

721 F. Supp. 3d 431, 454 (N.D. Tex. 2024) (“the Framers wanted to ensure federal

courts don’t become the de facto forum to air political grievances”).

Losing sight of the proper judicial role is not a victimless offense. Rather,

should the Court allow associational standing to continue expanding, it will be the

American People who pay the price. “Liberty is always at stake when one or more of

the branches seek to transgress the separation of powers,” Clinton v. City of New

York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring), and every expansion of associational standing aggrandizes the judicial power while “usurping the role of the

political branches,” Morley & Hessick, supra, at 1562–63. The underlying problems

17

with associational standing underscore that associational standing’s expansion in

this litigation warrants this Court’s attention.

IV.

The Court Should Revisit Associational Standing While Clarifying a

Passerby’s Offense Does Not Constitute a Cognizable Injury

Although this Court could resolve this case on the ground that the Trust did

not identify a member who has suffered a cognizable injury, this case provides an

excellent opportunity to revisit associational standing because it pairs that theory

with an ahistorical, offended observer theory of injury to dramatically expand the

ability of organizations to block government projects. As noted above, the theory of

injury underlying the Trust’s suit is that a member’s “enjoy[ment]” of the White

House “will be impaired . . . by the construction on the East Wing’s former site of a

ballroom.” Nat’l Tr. for Historic Pres., 2026 WL 2276494, at *14. Standing is supposed

to “screen[] out plaintiffs who might have only a general legal, moral, ideological, or

policy objection to a particular government action.” All. for Hippocratic Med., 602 U.S.

at 381. Yet here, an aesthetic objection was enough.

This Court need not look far afield to see the potential damage embracing the

D.C. Circuit’s theory of standing could cause. Over the last several decades, private

persons and associations have run into court to block government monuments that

allegedly partake too much in religion on the theory that a person would come into

“direct and unwelcome contact with an [alleged] Establishment Clause violation.” Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1024 (8th Cir. 2012).

But “this ‘offended observer’ theory of standing has no basis in law,” Am. Legion v.

Am. Humanist Ass’n, 588 U.S. 29, 79–80 (2019) (Gorsuch, J., concurring), and “cannot

18

be squared with this Court’s longstanding teachings about the limits of Article III,”

id. at 83; see Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1335 (11th Cir. 2020)

(Newsom, J., concurring) (criticizing as “just plain wrong” circuit precedent’s “full-on

embrace of what Justice Gorsuch recently called the ‘offended observer’ theory”) (citation modified)). Instead, “[l]ower courts invented” the offended observer theory of

standing in response to Lemon v. Kurtzman, 403 U.S. 602 (1971), sparking decades

of litigation over war memorials, historical markers, and nativity displays. Am. Humanist Ass’n, 588 U.S. at 84 (Gorsuch, J., concurring); see City of Ocala, Fla. v. Rojas,

143 S. Ct. 764, 765 (2023) (statement of Gorsuch, J., respecting denial of certiorari).

Associations were frequent combatants in these cases. Many Establishment

Clause challenges were brought by organizations that claimed nothing more than

that their members were or would be offended. See, e.g., Am. Legion, 588 U.S. at 79,

(Gorsuch, J., concurring) (“The American Humanist Association wants a federal court

to order the destruction of a 94 year-old war memorial because its members are offended.”); Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002) (“[V]arious members of

the American Civil Liberties Union travel to the Capitol, all of whom would come into

direct, unwelcome contact with the monument.”); Indiana Civil Liberties Union Inc.

v. O’Bannon, 110 F. Supp. 2d 842, 847 (S.D. Ind. 2000) (holding an association had

standing to challenge Ten Commandments monument because “individuals will be

forced into frequent, direct, and unwelcome contact with the monument during the

course of their normal routines, if it is erected as planned”). This practice ended up

placing “Article III standing . . . in the hands of concerned bystanders, who . . . use[d]

19

it simply as a vehicle for the vindication of value interests.” Hollingsworth v. Perry,

570 U.S. 693, 707 (2013) (quotation marks omitted).

If, as the Trust urges, the offense that comes from seeing construction projects

that are in no way religious is held to be a cognizable injury, it is not hard to predict

what will happen next. State and local governments will see themselves mired in

litigation over efforts to build schools, roads, jails, and other vital projects solely because an interest group can find a single person who says they won’t like the way the

building will look. That result cannot be squared with Article III. “Article III does not

contemplate a system where 330 million citizens can come to federal court whenever

they believe that the government is acting contrary to the Constitution or other federal law” during the process of laying pavement or putting up a school. All. for Hippocratic Med., 602 U.S. at 382.

*

*

*

Fortunately, the Court need not allow the judiciary to continue down this path.

Rather than arrogate “general legal oversight of the Legislative and Executive

Branches,” TransUnion, 594 U.S. at 423–24, the Court can take this opportunity to

check a doctrine that has become limitless. Doing so will not prevent organizations

from seeking redress for their own injuries. Nor will it prevent the actual injuries of

individuals from being redressed: organizations who wish to see members’ claims go

forward can still provide legal assistance, funding, or representation to the injured

member, or even to a class of injured members. See Morley & Hessick, supra, at 1569

(citing an instance where an organization successfully used this strategy). But the

20

Court should not allow groups whose members claim offense to sue over virtually

anything and everything. The problems underlying the theory that the D.C. Circuit

embraced are yet further reasons this case warrants this Court’s attention.

CONCLUSION

The Court should stay the district court’s preliminary injunction.

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Respectfully submitted,

RAÚL R. LABRADOR

Attorney General of Idaho

THEODORE E. ROKITA

Indiana Attorney General

MICHAEL A. ZARIAN

Solicitor General of Idaho

JAMES A. BARTA

Solicitor General

Counsel of Record

Office of the Attorney General

700 W. Jefferson St. Ste. 210

Boise, ID 83720

(208) 334-2400

michael.zarian@ag.idaho.gov

Counsel for the State of Idaho

ROBERT M. BELDEN

Deputy Solicitor General

DENISHA CHETTY

Deputy Attorney General

Office of the Indiana Attorney General

302 W. Washington St.

Indiana Government Center South,

5th Floor

Indianapolis, IN 46204-2770

Phone: (317) 232-0709

Fax: (317) 232-7979

James.Barta@atg.in.gov

Counsel for State of Indiana

22

ADDITIONAL SIGNATORIES

STEVE MARSHALL

Attorney General

State of Alabama

AUSTIN KNUDSEN

Attorney General

State of Montana

TIM GRIFFIN

Attorney General

State of Arkansas

MICHAEL T. HILGERS

Attorney General

State of Nebraska

JAMES UTHMEIER

Attorney General

State of Florida

DREW H. WRIGLEY

Attorney General

State of North Dakota

CHRISTOPHER M. CARR

Attorney General

State of Georgia

GENTNER F. DRUMMOND

Attorney General

State of Oklahoma

BRENNA BIRD

Attorney General

State of Iowa

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

JONATHAN SKRMETTI

Attorney General and Reporter

State of Tennessee

RUSSELL COLEMAN

Attorney General

Commonwealth of Kentucky

KEN PAXTON

Attorney General

State of Texas

LIZ MURRILL

Attorney General

State of Louisiana

STEVE MONTENEGRO

Speaker of the Arizona

House of Representatives

LYNN FITCH

Attorney General

State of Mississippi

WARREN PETERSEN

President of the

Arizona Legislature

CATHERINE L. HANAWAY

Attorney General

State of Missouri