Is Prudential Standing Jurisdictional

The Supreme Court has clearly treated the Constitution’s Article III standing requirements as mandatory jurisdictional hurdles that a plaintiff must meet for each form of relief sought before federal courts may consider the merits of a case. But the Supreme Court has never squarely held that prudential standing is a jurisdictional issue that must be decided before the merits in every single case. A 1975 Supreme Court decision suggested in dicta that prudential standing doctrine plays a crucial role in preventing federal courts from addressing political questions, but a 1984 Court decision implied in dicta that prudential standing is less important than Article III constitutional standing. In light of the Court’s conflicting dicta about the importance of prudential standing doctrine, it is not surprising that lower federal courts have split over whether prudential standing † James Helmer Jr. Professor of Law, University of Cincinnati College of Law; P.O. Box 210040, University of Cincinnati, Cincinnati, Ohio, 45221-0040; Telephone (513) 556-0094, Fax (513) 556-1236, E-mail brad.mank@uc.edu. I thank Michael Solimine for his comments on an earlier draft. All errors or omissions are my responsibility. This Article is one of a series of explorations of modern standing doctrines. The other pieces are: (1) Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA’s New Standing Test for States, 49 Wm. & Mary L. Rev. 1701 (2008); (2) Standing and Future Generations: Does Massachusetts v. EPA Open Standing for Generations to Come?, 34 Colum. J. Envtl. L. 1, (2009); (3) Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 ECOLOGY L.Q. 665 (2009): (4) Summers v. Earth Island Institute Rejects Probabilistic Standing, but a “Realistic Threat” of Harm is a Better Standing Test, 40 Envtl. L. 89 (2010); (5) Revisiting the Lyons Den: Summers v. Earth Island Institute’s Misuse of Lyons’s “Realistic Threat” of Harm Standing Test, 42 Ariz. St. L.J. 837 (2010); (6) Summers v. Earth Island Institute: Its Implications for Future Standing Decisions, 40 Envtl. L. Rep., 10958 (2010); (7) Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm Is Difficult to Prove, 115 Penn St. L. Rev. 307 (2010); (8) Informational Standing After Summers, 39 B.C. Envtl. Aff. L. Rev. 1 (2012); (9) Reading the Standing Tea Leaves in American Electric Power v. Connecticut, 46 U. Rich. L. Rev. 543 (2012); (10) Judge Posner’s “Practical” Theory of Standing: Closer to Justice Breyer’s Approach to Standing than to Justice Scalia’s, 50 Hous. L. Rev. 71 (2012); and (11) Standing for Private Parties in Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, 2012 Mich. St. L. Rev. 869 (2012). Case Western Reserve Law Review·Volume 64·Issue 2·2013 Is Prudential Standing Jurisdictional? 414 requirements are jurisdictional or whether such barriers may be waived if a party fails to raise the issue. This Article generally agrees with recent judicial arguments that prudential standing should not be treated as a jurisdictional issue. The greatest weakness of these arguments is that, although they relied in part on the Supreme Court’s recent trend to narrow the issues considered jurisdictional, they did not address why the Court has engaged in such a trend. This Article attempts to supplement these arguments by examining the adversarial traditions that underlie the Anglo-American legal system. It further explains that the argument for limiting the scope of jurisdictional rules would have been more convincing if it also pointed out that judges’ sua sponte jurisdictional decisions are generally contrary to the Anglo-American legal system’s party-controlled adversarial model of legal decision making and, as a result, should only be mandated where absolutely necessary. Indeed, the Court itself has referenced the adversarial model in relation to jurisdictionality, noting that “[b]randing a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system.” After considering various Court dicta on the relationship between prudential and Article III standing, this Article concludes that prudential standing is not so closely entwined with Article III jurisdiction to require an exception to our adversarial traditions of party autonomy in a free society. Furthermore, this Article maintains that where jurisdictionality is a close question, courts should give significant weight to the impact of mandatory sua sponte jurisdictional decisions on the fundamental principle of adversarial party control. Case Western Reserve Law Review·Volume 64·Issue 2·2013 Is Prudential Standing Jurisdictional?