Litigating Article III Standing : A Proposed Solution to the Serious (But Unrecognized) Separation-of-Powers Problem

The various doctrines of subject-matter jurisdiction represent some of the most important limitations on the powers of the federal judiciary, and the Supreme Court has repeatedly said that Article III standing, which enforces the Constitution's “case or controversy” requirement, is the most important of these jurisdictional doctrines. So a federal court that exercises its coercive power over litigants by entering a final judgment without first ensuring that the plaintiff has Article III standing would plainly violate the separation of powers. This much should be indisputable. But what if a federal court exercises its coercive power over litigants before entry of final judgment — say, by unlocking the doors to general discovery that is likely to be so expensive that it effectively coerces the defendant into an in terrorem settlement of a weak claim? Simple logic would suggest that the court should correspondingly shift earlier its resolution of the plaintiff's Article III standing as well. Yet courts inexplicably defer resolving contested issues of standing when raised by defendants, instead treating Article III standing as if it were just another merits issue: something to be plausibly alleged in a complaint, supported by substantial evidence (taken as true) at summary judgment, and eventually proved by a preponderance of evidence at trial. We argue that this approach is wrong, because it potentially subjects litigants to years of coercive proceedings absent a genuine case or controversy. Instead, we propose that courts exclusively and definitively resolve contested issues of Article III standing, no matter when they arise in the litigation, using Rule 12(b)(1) of the Federal Rules of Civil Procedure — including by holding evidentiary hearings and making credibility determinations as necessary. This approach would ensure that courts do not stray beyond the constitutionally dictated boundaries of their power by coercively affecting the primary conduct of litigants without first ensuring the existence of a genuine case or controversy