Article III Standing in Federal Prosecutions of “Victimless Crimes”

Plaintiffs in federal court bear the burden of proving their standing, as Article III permits inferior federal courts, after Congressional authorization, to exercise jurisdiction over “Cases” and “Controversies” alone. From these constitutional terms of art—“Cases” and “Controversies”—we derive the familiar case-or-controversy requirement of standing, including injury. These terms of art authorize Congress to empower the inferior federal courts to hear civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States in federal court, including that the United States has suffered injury. This Essay examines that lapse and contends that Article III compels federal prosecutors to shoulder the burden of proving that the United States has been injured—a burden easily carried in all but federal prosecutions of so-called “victimless crimes” where the United States has not been, and never will be, harmed.