Standing Up to the Treasury: Applying the Procedural Standing Analysis to Post-Mayo, Pre-Enforcement APA Treasury Challenges

By Casey N. Epstein. Full Text. 

Administrative law and tax law have clashed for the past several decades. While recent caselaw, starting with Mayo Foundation in 2010, has indicated that administrative law, such as the Administrative Procedure Act (APA), does apply to the Treasury, many questions remain unanswered. Much attention has recently focused on the interplay between the Anti-Injunction Act (AIA) and the Treasury and whether the AIA prevents taxpayers from suing the Treasury for APA violations.

With the Supreme Court poised to answer this question in CIC Services this coming Term, this Note poses the next question that the courts will need to answer: even if the AIA does not bar a taxpayer from launching a pre-enforcement administrative challenge against the Treasury, will the taxpayer have standing to secure judicial review?

This question is surprisingly novel—few courts have needed to ask it because pre-enforcement APA challenges to the Treasury were obviously barred by the AIA in the past. Now that this question is a live issue, courts are already diverging from one another in answering whether such plaintiffs have standing. This Note resolves the emerging jurisdictional split.

Arguing that plaintiffs launching pre-enforcement APA suits against the Treasury should generally have standing to sue, this Note posits that courts should assess these plaintiffs’ standing rights under the relatively lax procedural standing inquiry. Without procedural standing, many of these plaintiffs’ claims would be non-justiciable, creating harmful and absurd policy results, classically described in Marbury v. Madison as having a “right without a remedy.” Thus, after the Supreme Court resolves whether the AIA bars pre-enforcement APA challenges to the Treasury, courts should hold that plaintiffs do have standing to launch administrative pre-enforcement challenges against the Treasury under the procedural standing doctrine.