Mark Crawford, et al. v. Department of the Treasury, et al.

In Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014), this Court unanimously rejected the Sixth Circuit’s restrictive Article III standing rules and held that: (i) where “future injury” is at issue, it may be “‘certainly impending’” or at “‘substantial risk’” of occurring; (ii) where future injury is the risk of “enforcement of a law,” neither violating a law nor an “enforcement action is ... a prerequisite to challenging the law”; and (iii) “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.’” Id. at 2341-42 (emphasis added) (citations omitted). And Roe v. Wade, 410 U.S. 113, 125 (1973), held that persons denied services due to a law coercing third parties not to provide the service may challenge the law even though legal penalties apply only to providers. The core issue is whether the Sixth Circuit erred by holding that Petitioners lack standing—and that amending their complaint won’t fix standing—based on standing rules that violate Driehaus, Roe, and other precedents. This issue poses six sub-issues:

1. Whether the Sixth Circuit erred by substituting for Driehaus’s rule—that “certainly impending” future harm or a “substantial risk” thereof suffices, including “a credible threat of prosecution”—a Sixth Circuit rule that “the threat of prosecution ‘must be certainly impending,’” with “a certain threat of prosecution.”

2. Whether the Sixth Circuit erred by ignoring Driehaus’s rule—that where injury is the risk of “enforcement of a law,” neither violating a law nor an “enforce(i)