Successful objections to subject matter jurisdiction can operate like a King’s-X for illegal behavior – a hole in the rule of law. Where there is no subject matter jurisdiction, fairness, truth, and justice become irrelevant. Thus, for example, decisions that are “committed to agency discretion by law” are largely free of constraints like legality and accountability. Similarly, where there is no standing to sue, there is no subject matter jurisdiction and, thus, no need for governmental actors to follow statutes or the Constitution.

Standing-to-sue sounds like a common-sense proposition. Obviously courts should limit their decisions to cases in which litigants have a “personal stake in the outcome … to assure that concrete adverseness which sharpens the presentation of issues.” But standing doctrine is not supposed to “insulate executive action from judicial review” or “prevent any public interests from being protected through the judicial process.” Thus, as a citizen-suit lawyer, it strikes me as ludicrous that my clients must jump through hoops to show, for example, that they have a personal stake in Clean Air Act compliance by major sources in their own neighborhoods. Isn’t it obvious?

Lawyers being lawyers, standing doctrine has evolved into a complex tool only loosely connected to the purpose it is supposed to serve. One use for this tool is to allow courts to dump inconvenient cases without ever reaching the merits, end running the rule of law. The tool can be effective even when there is no doubt as to concrete adverseness or a strong stake in the outcome. So, happy as I may be for the Affordable Care Act to live on, I would rather have that result rest on the merits, instead of a conclusion that a litigant injured by an allegedly unconstitutional statute must trace its injury to the precise provision that violates the Constitution.