Article 3, Section 2, Clause 1 — Actual Or Imminent Injury

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

To satisfy the demands of Article III, a litigant must have suffered an “actual or imminent” injury or, in other words, have “sustained or [be] immediately in danger of sustaining some direct injury as the result of the challenged . . . conduct.” [1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn1art3 " Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted). The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998). On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability only if it seeks monetary damages. See id. A litigant cannot demonstrate “actual or imminent injury” from a legal requirement that has “no means of enforcement.” California v. Texas, No. 19-840, slip op. at 5 (U.S. June 17, 2021) ") To satisfy this test, a litigant’s injury must either have already occurred, be presently occurring, or will imminently occur (i.e., be “certainly impending” ).[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn2art3 " See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013). ") The “actual or imminent” injury prong of the Lujan test is related to the “redressability” prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief).[3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn3art3 " See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–09 (1998). ") On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability if it seeks monetary damages.[4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn4art3 " See id. ")

The requirement that a litigant establish an “actual” (i.e., past or present) injury is largely synonymous with the requirement for a concrete and particularized injury.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn5art3 " The distinction between past and present injuries sometimes becomes blurred in practice. See, e.g., Clinton v. City of New York, 524 U.S. 417, 43031 (1998) (allowing the State of New York to challenge the President’s authority to exercise a line-item veto, based on a subsequent exercise of that veto that would result in a “substantial contingent liability” of billions of dollars on the state). ") For example, in Lewis v. Casey, the Court defined an “actual injury” to an inmate’s constitutional right of access to the courts and counsel as requiring an inmate to “demonstrate that the alleged shortcomings in [a prison’s] library or legal assistance program hindered his efforts to pursue a legal claim.” [6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn6art3 " 518 U.S. 343, 351 (1996). ") This evidentiary burden simply required a showing that the inmate had suffered an injury in the past that went beyond harm to “an abstract, freestanding right to a law library or legal assistance” and involved more than an allegation that a “prison’s law library or legal assistance program [was] subpar in some theoretical sense.” [7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn7art3 " See id. ") The Court cited as an example of actual injury in this context that an inmate’s legal complaint “was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.” [8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn8art3 " Id. ")

The major questions that have arisen concerning the “actual or imminent” prong of the standing inquiry largely involve cases in which a litigant alleges future (i.e., “imminent” ) injury and seeks injunctive relief to prevent it.[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn9art3 " A litigant that seeks damages for an asserted risk of future harm has not demonstrated a concrete harm sufficient for Article III standing unless “the exposure to the risk of future harm itself causes a separate concrete harm.” TransUnion LLC v. Ramirez, No. 20-297, slip op. at 20, 26 (U.S. June 25, 2021). ") The Supreme Court has decided several cases addressing when a litigant’s alleged future injures are sufficiently imminent to confer standing to seek a court order aimed at redressing them.

For example, the Court has indicated that it may be difficult for a litigant to establish an “actual or imminent” injury when he seeks injunctive relief against government officials for allegedly illegal and unconstitutional systemic practices in their administration or enforcement of the law.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn10art3 " E.g., Rizzo v. Goode, 423 U.S. 362, 372 (1976) (determining that litigants could not show “real and immediate injury” because their allegations concerned “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures.” ). ") In O’Shea v. Littleton,[11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn11art3 " 414 U.S. 488 (1974). ") several residents of Cairo, Illinois, sued state and local officials for allegedly administering the criminal justice system in a discriminatory and unconstitutional manner through a pattern of illegal bondsetting, sentencing, and jury-fee practices.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn12art3 " Id. at 490–92. ") The Court determined that the plaintiffs lacked standing to seek an injunction against these practices because they did not allege they had actually suffered (or would immediately suffer) injuries from the conduct of these officials.[13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn13art3 " Id. at 494 ( “Abstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” ). ") Although some of the plaintiffs were defendants in past criminal cases, at the time that they brought their lawsuit, none of the plaintiffs were serving sentences, on trial, or awaiting trial, and they did not allege an intent to engage in illegal conduct in the future.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn14art3 " Id. at 494–95 ( “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners.” ). Notably, the O’Shea plaintiffs alleged that they would likely have a future challenge to the government’s practices. If they had alleged that their past challenges to the government’s conduct had evaded judicial review because the unconstitutional conduct ceased before the litigants could bring a lawsuit, then the Court may have addressed the doctrine of mootness. See (discussing circumstances in which the Court has made an exception to the mootness doctrine because conduct is “capable of repetition, yet evading review” ). ") The plaintiffs thus failed to demonstrate more than mere speculation that they would be subject to the challenged law enforcement practices and suffer injuries as a result of being arrested, charged with crimes under laws they did not challenge as unconstitutional, and subject to proceedings before the criminal justice system.[15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn15art3 " O’Shea, 414 U.S. 488 at 496 ( “Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” ); id. at 498 ( “[W]here respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” ). See also Rizzo v. Goode, 423 U.S. 362, 372 (1976). ")

A decade later, the Court held that past illegal conduct by the government does not imply that the government will again violate the law in the future. For purposes of standing, this holding means that a litigant cannot use that past conduct to demonstrate imminent harm when seeking a declaration from the court that the agency’s past action was illegal (i.e., a declaratory judgment) or an order preventing the agency from engaging in illegal conduct in the future (i.e., an injunction). In Los Angeles v. Lyons, the plaintiff sought damages for having allegedly suffered a chokehold at the hands of the city police department but also asked for injunctive relief prohibiting the city from using chokeholds in the future.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn16art3 " 461 U.S. 95, 105 (1983). ") However, the Court found the plaintiff’s allegations of future injury to be too speculative to support standing for the requested prospective injunctive relief because, although the plaintiff had been choked once, he could not realistically allege that there was a threat that he would again be arrested and illegally choked by the police as a result of the city’s policy.[17](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/actual-or-imminent-injury#fn17art3 " Id. ( “That Lyons may have been illegally choked by t