If doctors who believe the Food & Drug Administration mistakenly approved or deregulated a drug cannot sue the FDA, can anyone else? This was the very first question asked at oral argument in FDA v. Alliance for Hippocratic Medicine last week. Though initially raised by Justice Thomas, other justices picked up on the question, and it remains an interesting question. If AHM lacks standing here (as I have argued), can anyone sue the FDA? Maybe. Maybe not (at least at the moment). And if not, that might be okay.
It is quite common in standing cases for a judge or justice to ask "if not this plaintiff, then who would have standing?" While it is often the case that a different plaintiff, who is differently situated or has a more concrete stake in the underlying question may be more likely to have standing, that is not always the case. In some cases, no one has standing, at least not under current law. Not every governmental wrong may be remedied in federal court. As Justice Alito wrote for the Court in Clapper v. Amnesty International (quoting prior decisions of the Court going back fifty years), "the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." In a standing case, the question is always whether the plaintiffs have standing, as this is what Article III (as currently interpreted) requires, not whether there is a hypothetical plaintiff that might have standing.
As a general matter, it is always more difficult to demonstrate standing when a plaintiff is seeking to influence how the government treats a third party than when a plaintiff is seeking to vindicate his or her own rights as against the government. So, for instance, a taxpayer may be able to sue if she believes the government unlawfully denied her a tax break, but is unlikely to have standing to challenge a governmental decision granting an illegal tax break to someone else.
