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 requirements are jurisdictional or whether such barriers may be waived if a party fails to raise the issue. Recently, in Grocery Manufacturers Association v. EPA, a three-judge panel of the D.C. Circuit divided over this issue. Chief Judge David Sentelle in his opinion for the Court held that the petitioners met neither constitutional Article III nor prudential standing requirements. Judge David Tatel’s concurring opinion concluded that the food producers had constitutional standing to bring their claims, but that prudential standing requirements barred jurisdiction. He personally agreed with those circuits that have held that prudential standing is non-jurisdictional, but concluded that he was bound by the D.C. Circuit’s precedent holding that prudential standing is jurisdictional. By contrast, Judge Brett Kavanaugh’s dissenting opinion reasoned that prudential standing is not a jurisdictional issue because recent Supreme Court decisions had narrowed the scope of which questions are jurisdictional in nature, although these decisions had not specifically addressed the issue of prudential standing. This Article generally agrees with Judges Kavanaugh and Tatel that prudential standing should not be treated as a jurisdictional issue. The greatest weakness of Judge Kavanaugh’s opinion is that he did not thoroughly address why the Court has sought to narrow the range of jurisdictional issues. This article examines the adversarial traditions that underlie the Anglo-American legal system. It explains that Judge Kavanaugh’s argument for limiting the scope of jurisdictional rules would have been more convincing if he had also pointed out that sua sponte jurisdictional decisions by judges are generally contrary to the Anglo-American legal system’s party-controlled adversarial model of legal decision-making. The Court’s best explanation for making a sharp distinction between jurisdictional and non-jurisdictional rules is that “[b]randing a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system.” 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