Constitutional Versus Prudential Limits

Constitutional Versus Prudential Limits

The doctrines taught in the preceding sections all grow out of the case-or-controversy requirement, but they do not all rest on the same foundation, and the difference answers a practical question: whether Congress can change them by statute. The justiciability doctrines are all judicially created, and the Court has declared that some are constitutional, meaning that Congress by statute cannot override them, while others are prudential, meaning that they rest on prudent judicial administration and can be overridden by Congress.¹ The label therefore tells a reader what Congress may do with the doctrine. A constitutional limit marks the edge of the judicial power itself. A prudential limit is a rule of self-restraint about when to exercise a power the courts already hold. This section explains why each kind of limit carries its consequence, how a barrier can be sorted into the right category, and why the sorting is harder than it sounds.

A limit is constitutional when it defines what a case or controversy is. Article III extends the judicial power to listed cases and controversies, and the elements taught at the start of this chapter, adverse parties in an actual dispute over their own legal relations and relief that binds them, are the content of that grant. Because the Constitution fixes the grant, a statute cannot enlarge it, which is the logic behind the principle in Marbury that an act of Congress contrary to the Constitution does not operate as law.² The Court has accordingly said that Congress may not require it to render opinions in matters that are not cases or controversies.³ In Buckley v. Valeo Congress had provided a special route for constitutional challenges to a campaign-finance statute, and the Court nonetheless began by asking whether the appellants had the personal stake Article III demands. It read Congress's grant of review as reaching only as far as Article III permits, and it found that at least some appellants had the required stake.⁴

The consequence for a statute that tries to supply what Article III requires appears in Muskrat v. United States. Congress had authorized named plaintiffs to sue the United States in the Court of Claims to test the validity of earlier statutes, with the United States as the defendant, and the Court directed dismissal because the government had no interest adverse to the plaintiffs.⁵ The rule drawn from the decision is that Congress cannot make the United States a defendant in federal court unless the United States truly has an interest adverse to the plaintiff.⁶ Two companion points follow from the same limit: parties who want a constitutional ruling cannot confer jurisdiction on a federal court by agreeing to it, and federal courts cannot reach out to resolve even vital constitutional questions at the behest of Congress and the President.⁷ A statute, an agreement between the parties, and the importance of the question therefore all fail for the same reason, which is that none of them changes what a case or controversy is.

Prudential limits begin where the constitutional minimum ends. Beyond the requirement of a case or controversy, the Court has developed policy rules under which it avoids deciding constitutional questions on the merits, among them the rules that it will not decide a constitutional question unless the decision is necessary, will not formulate a rule broader than the facts require, and will first ask whether a statute can fairly be construed to avoid the constitutional problem.⁸ Within standing, the Court has recognized self-imposed limits of the same kind, including the general rule against resting a claim on the legal rights of third parties and, in some opinions, the rule against hearing generalized grievances shared by a large class of citizens.⁹ The reason for such limits is functional: without them, courts would be asked to decide abstract questions of wide public significance that other institutions may be better placed to address and that individual rights may not require a court to resolve.¹⁰ The factors the Court has listed for its self-restraint point the same way. They are the delicacy of the judicial function in constitutional cases, the comparative finality of constitutional rulings, the need for consideration by other repositories of constitutional power, the preservation of the constitutional allocation of powers, and the inherent limitations of the judicial process.¹¹

The treatment of friendly suits shows both kinds of limit working on one subject. Feigned cases in which the litigants collude to obtain the same result present no constitutional case or controversy, so no statute or stipulation can rescue them.¹² The rule of restraint applies one step later, where adversity falls short of defeating jurisdiction: the Court will not pass on the constitutionality of legislation in a friendly, nonadversary proceeding, and that rule heads the list of self-imposed rules of restraint.¹³ The first limit defines the case, while the second counsels caution about a proceeding that is already a case.

The consequence for Congress follows from this difference in kind. A constitutional limit defines the power of the courts, and Congress has no authority to expand a power the Constitution defines. A prudential rule is a judgment about when it is wise to use a power the courts already have, and that judgment rests on policy considerations of the sort just listed. Congress, as the democratic branch, can weigh those considerations differently and authorize the federal courts to entertain suits they might otherwise refuse on prudential grounds.¹⁴ The Court itself can also set a policy barrier aside when important factors counsel decision, which it cannot do with a barrier that originates in Article III.¹⁵ What stays beyond everyone's reach is the structural core, adverse parties and a real dispute, since a court acting without it would be giving the advice that the ban on advisory opinions forbids.

The difficulty is that the Court does not always say which kind of limit it is applying. Many aspects of justiciability involve no ambiguity, but the Court has sometimes failed to make clear whether a particular component is constitutional or prudential, which leaves uncertain whether Congress could override it.¹⁶ The overlap has a source: the policy reasons for avoiding unnecessary constitutional decisions generally coincide with the concerns behind the case-or-controversy requirement, so a barrier resting on one can look just like a barrier resting on the other.¹⁷ Standing is the standard example. In Lujan v. Defenders of Wildlife the Court said that some elements of standing express merely prudential considerations of judicial self-government, while the core component, which demands an injury in fact, a causal connection to the defendant's conduct, and likely redress, is an essential and unchanging part of the case-or-controversy requirement.¹⁸ Allen v. Wright drew the same line between a constitutional core and several judicially self-imposed limits.¹⁹ Yet the bar on generalized grievances sits on both sides of that line: Allen counted it among the self-imposed limits, and the same opinion held that a plaintiff who claims only the harm every citizen suffers from improper application of the law does not state an Article III case or controversy.²⁰

Classifications can also change over time. The zone-of-interests test once counted as a prudential standing requirement, but the Court now says that prudential standing is a misnomer for it and treats it as an exercise in statutory interpretation that asks whether the cause of action Congress conferred covers the plaintiff's claim.²¹ The Court has questioned prudential standing constraints more generally as well.²² Ripeness and mootness are mixtures of the same sort, as the discussion of each noted, so a dismissal on those grounds does not by itself tell a reader whether Congress could have prevented it.²³ The practical stakes are the ones the distinction exists to settle. A policy barrier can be avoided when important factors favor decision, and a limit that originates in Article III cannot be, so an uncertain classification leaves open whether a statute authorizing the suit would help.²⁴

Students lose this issue when they treat a statute that authorizes the suit as a cure for every barrier. A statute removes only a prudential barrier, so the question that still matters is which element was missing. In Muskrat Congress expressly authorized the suit, and the case failed because the missing element was adversity, which belongs to the constitutional core. The opposite error is to treat every dismissal as constitutional and conclude that nothing can be done, when the barrier was a rule of restraint that Congress has the power to lift. The variable that moved the answer in the paired examples above is whether the missing element is part of the definition of a case.