Some federal courts
have devised a new test of prudential standing that they use to dismiss suits
filed by foreign plaintiffs alleging unlawful conduct by American officials
abroad, even when these cases involve matters that may have nothing to do with
foreign affairs, national security, or terrorism. Rather than decide the case
on its merits or dismiss it on any number of legitimate grounds, the complaint
is dismissed because the plaintiff lacks a "prior substantial connection" to the United States.
I identify and
critique this strange but proliferating test of standing. First, it is
inconsistent with any theoretical view of the Constitution's extraterritorial
application, including the functional one recently advanced in Boumediene v. Bush, the U.S. Supreme
Court's landmark habeas corpus decision. Second, it advances none of the policy
interests that prudential standing was created to promote. The test has been
wrenched from its origins as an approach to decide the merits of a
constitutional question; it is now used to decide jurisdiction. This impedes
the development of an important area of case law while abdicating the judicial
role in defining the limits of state power.
The Article begins
with an in-depth case study (based on interviews and primary sources) of a
takings claim that would have been unexceptional but for its foreign location
and rather shocking allegations against the United States. I repeatedly reference
this case while examining the theoretical and practical inconsistencies of
dismissing "Zoya's case" not because the courts found fault with her claim, but
because she lacked a prior substantial connection to the United States.