State Standing’s Uncertain Stakes

Abstract

This paper investigates the ‘stakes’ of state standing. By ‘stakes,’ I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting to the ability of states to initiate a matter in federal courts. Why, that is, does state standing mater? An inquiry into stakes can usefully proceed step-wise. A first task is to identify the subset of state-standing cases that presently elicit division among the Justices. A second task is to articulate the interesting normative consequences of narrowing or widening the Article III gauge in this contested class. This inquiry illuminates the multifarious character of downstream consequences plausibly related to state standing doctrine. For example, it is already a familiar claim in litigation over this Article III question that a denial of state standing will lead to an issue’s nonjusticiability. My analysis suggests we should be a bit skeptical of that notion. Instead, it suggests the value of attending to other, less familiar institutional-design implications, such as effects on the structural constitution and the incentives of state officials.

Keywords: standing; state standing