The Americans with Disabilities Act (ADA) requires hotels to provide accessibility information on their websites so that individuals with disabilities can ascertain whether any given hotel meets their needs. The statute permits such individuals to obtain injunctions requiring noncompliant hotels to follow the law.

For the past several years—in the wake of a multiple sclerosis diagnosis that eventually required her to use a wheelchair—Deborah Laufer has become one of those individuals. Frustrated with the difficulties of travel as a person with disabilities,  made worse by the widespread failure of the hotel industry to comply with the ADA, Laufer decided to become a “tester”—that is, a person who identifies noncompliant hotels and files suit irrespective of any travel plans.

This is one such suit. After discovering that Acheson Hotels failed to provide accessibility information on one of its hotel websites, Laufer filed suit to bring the company into compliance with federal law. Acheson moved to dismiss, claiming Laufer lacked standing because she had no plans to stay at the hotel and thus suffered no real injury. The district court agreed with Acheson, but the First Circuit reversed, holding that Laufer suffered a cognizable injury under binding Supreme Court precedents. Acheson asked the Supreme Court to hear the case, and the Court agreed to do so.

On August 9, 2023, CAC filed an amicus curiae brief in support of Laufer. Recognizing the Supreme Court’s pronouncement that “history and tradition” provide “a meaningful guide to the types of cases that Article III empowers federal courts to consider,” our brief makes two main points focused on historical practice as it relates to Laufer’s case.

First, our brief explains that the stigmatic injury that Laufer suffered from Acheson’s discrimination—her sense of humiliation and frustration at being treated like a second-class citizen—has a close relationship to the dignitary harms that, at common law, gave rise to private actions for infringement of the duty to entertain imposed on innkeepers, common carriers, and other public-facing businesses. This is important, we assert, because the Supreme Court has held that harms with close common-law analogues are sufficiently concrete to confer Article III standing.

As we explain, the common-law plaintiffs who faced mistreatment or were wrongfully turned away by places of public accommodation regularly filed tort suits to remedy the emotional injuries they suffered, much like Laufer’s suit under the ADA. Common-law courts did not question the veracity of those plaintiffs’ harms for purposes of ascertaining whether they had cognizable injuries that could form the basis of their lawsuits. Similarly, our brief urges the Court to reject Acheson’s argument that the discrimination and stigmatic harm that Laufer suffered cannot be real just because her interest in Acheson’s website was motivated by her goal of ensuring its compliance with the ADA rather than a planned visit to the hotel.

Second, again looking to history and tradition, our brief refutes Acheson’s claim that because Laufer seeks to remedy not just her own injury but also discrimination faced by other people with disabilities, her suit undermines executive enforcement authority and thus runs afoul of the separation of powers principle that drives standing doctrine.

As we describe, since the Founding of this nation, private individuals have filed suits to enforce laws that protect the public welfare. Our brief traces the history of the qui tam action, which dates all the way back to thirteenth-century England and since that time, has permitted unharmed “informer” plaintiffs to bring suits that aid the government in enforcing laws that protect the public welfare. In particular, we document how two early American qui tam statutes—one focused on customs duties and another focused on limiting the United States’ involvement in the international slave trade—bear critical similarities to Laufer’s enforcement action. Yet, as we explain, no one from the Founding era—members of Congress, the Supreme Court, or the executive branch—questioned suits brought under those statutes as infringing on executive authority or otherwise undermining the separations of power principle at the core of our constitutional structure. Thus, we argue, it would be wholly ahistorical for the Supreme Court to throw out Laufer’s lawsuit on those grounds.