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03/27/2014

Lexmark v. Static Control: The End of Prudential Standing?
Michael Ramsey

In Tuesday’s Supreme Court decision in Lexmark v. Static Control – largely overlooked amid the Hobby Lobby coverage – Justice Scalia (for a unanimous Court) struck a major blow against the nebulous and ill-grounded doctrine of “prudential standing.”  The case is a federal statutory (Lanham Act) claim for false advertising between two makers of printer ink cartridges; the district court and the court of appeals differed on whether plaintiff Static Control was within the “zone of interest” of the Lanham Act, a question that both courts thought implicated the doctrine of prudential standing.  Justice Scalia set them straight:

The parties’ briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.

From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation­-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). … Lexmark does not deny that Static Control’s allegations of lost sales and damage to its business reputation give it standing under Article III to press its false­advertising claim, and we are satisfied that they do.

Although Static Control’s claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control’s claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court’s obligation to hear and decide” cases within its jurisdiction “is virtually unflagging.” Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) …

In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalizedgrievances more appropriately addressed in the representative branches, and the requirement that a plaintiff ’s complaint fall within the zone of interests protected by thelaw invoked.’” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 12 (2004) …

 … [However,] [w]hether a plaintiff comes within “the zone of interests” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff ’s claim. …

In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.

This is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”

Is Lexmark the end of prudential standing?  Quite possibly.  Justice Scalia added this footnote:

The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff ’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify… This case does not present any issue of third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await another day.

After losing both generalized grievances and zones of interest, prudential standing seems at most to contain limits on third-party-standing, which I think (and Scalia seems here to hint) are properly Article III questions as well.  (Perhaps we can now get this malign and confusing doctrine out of the Constitutional Law casebooks.)

Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.