Last term, the Court’s unanimous decision in Lexmark foreshadowed a major doctrinal shift in the area of third-party standing. As I’ve discussed in previous posts, Lexmark re-characterized “statutory standing” as part of the statutory merits. But Lexmark also went out of its way to hint that third-party standing might soon become parts of the merits as well.
In a footnote, Lexmark placed its main holding—namely, that the “zone-of-interests test” for statutory standing is actually a merits inquiry—in a broader doctrinal context. According to the Court: “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.” Lexmark then discussed generalized grievances and third-party standing. This post will focus on third-party standing, and a later one will take up generalized grievances.
Here is what Lexmark says about third-party standing.
The limitations on third-party standing are harder to classify; we have observed that third-party standing is “‘closely related to the question whether a person in the litigant’s position will have a right of action on the claim,’” Department of Labor v. Triplett, 494 U. S. 715, 721, n. ** (1990) (quoting Warth v. Seldin, 422 U. S. 490, 500, n. 12 (1975)), but most of our cases have not framed the inquiry in that way. See, e.g., Kowalski v. Tesmer, 543 U. S. 125, 128-129 (2004) (suggesting it is an element of “prudential standing”). 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.
The question here is how to “classify” third-party standing. According to the Court, there are two doctrinally available options. First, the third-party rule might be at least “closely related to,” if not actually part of, the question whether the plaintiff has a right of action on the merits. This is basically the way that Lexmark ended up treating “statutory standing,” which had also previously been called “closely related” to the merits. Second, third-party standing, unlike “statutory standing,” might be a bona fide rule of “prudential standing.”
Note that Lexmark’s two-item list of options omits a significant candidate—namely, the possibility that third-party standing might be part of Article III standing. There’s a good doctrinal explanation for that omission: Supreme Court case law establishes that Article III standing is necessary but insufficient for third-party standing. In other words, third-party standing doctrine imposes an additional restriction beyond the demands of Article III.
So, what in practice turns on whether third-party standing is part of the merits, or a prudential rule? At least two things, it seems to me.
First, viewing Article III as part of the merits would affect when federal courts can consider third-party issues. Under Steel Co.’s bar on hypothetical jurisdiction, federal courts must assure themselves of jurisdiction before reaching the merits. If that rule holds—and there is no sign that it won’t, at least in the near-term—then a merits-based third-party analysis would always have to come after addressing Article III standing. By contrast, the “prudential standing” label corresponds with the gray-zone category, recognized in Steel Co., of issues that look, walk, and quack like the merits but are nonetheless treated as “threshold” issues properly resolved before finding jurisdiction. In a previous post, I made a similar point about the doctrine formerly known as statutory standing: Steel Co. viewed statutory standing as a threshold issue, but now, after Lexmark, it’s apparently a merits inquiry that may be addressed only after jurisdiction.
Second, the merits/prudential distinction might affect the political branches’ ability to control third-party issues. Current standing doctrine provides that only constitutional issues can lie entirely beyond legislative influence. So categorizing third-party standing as either merits-based or prudential would allow for a robust legislative role. But that role might still be subtly different. If third-party standing is a form of the merits, then the range of people who have a cause of action would simply be one feature of what a constitutional or statutory provision means. There would be no separate, judicially created “standing” rule. But if third-party standing is a prudential rule, then it would impose an additional, judicially created layer of review on top of the merits. To be sure, legislation could override the Court’s prudential rule (because it’s non-constitutional), but that would presumably require something beyond simply creating a cause of action. In sum, a “prudential” rule would operate (i) in addition to the merits, (ii) quite possibly in a way without basis in legislative intent, and (iii) by default, unless the legislature took specific action beyond creating a cause of action.
Assuming that the Court’s two options are the only ones available, which answer is correct? Is third-party standing best viewed as a kind of merits question, or as a “prudential” restriction on standing? There is a lot to say about this, but I’ll offer a couple observations here.
From one standpoint, doctrine favors the prudential category, since the merits-based approach is in considerable tension with the idea that “third-party” standing involves third-parties at all. Under current doctrine, first-party rights-holders usually have exclusive standing but sometimes share standing with third-parties. By contrast, the merits-based approach effectively says that only first-parties (that is, parties with a cause of action) have standing; the people that current doctrine labels as “third parties with standing” are really just first-parties who don’t look like it at first. That approach calls to mind arguments from Henry Monaghan and others that third-party claims are basically misunderstood first-party claims. Having reached out to touch on this issue in Lexmark, the Court might be prepared to take up this fascinating topic.
From another standpoint, the merits/prudential choice turns on background principles of judicial power. One of Scalia’s announced goals is to curb judicial discretion. As I argued in a prior post, Scalia accepted and helped construct “prudential” standing doctrines like “statutory standing” only because doing so in the moment helped him advance his first-principles view of Article III standing. Now that Scalia’s view is ascendant, he has the luxury of scaling back the prudential doctrines that he previously relied on, including “statutory standing.” For someone who shares Scalia’s attitude, any standing rule should be grounded in a constraining text. And, it seems, the only two options are Article III and whatever source of law gives rise to the merits. Having ruled out Article III as the source of third-party standing doctrine, Scalia seems committed to viewing third-party standing as a merits inquiry. By contrast, someone more tolerant of judicial discretion might be more willing to entertain “prudential” doctrines, or to ground those doctrines in the “judicial Power.”
The bottom line is that “third party standing” might not be part of “standing” for much longer.