Standing Doctrine’s State Action Problem

65 Pages Posted: 5 Apr 2015 Last revised: 3 Nov 2016

See all articles by Seth Davis

Seth Davis

University of California, Berkeley School of Law

Date Written: April 3, 2015


Something surprising happened in the 2013 marriage equality cases that did not involve striking down the Defense of Marriage Act. The Supreme Court discovered standing doctrine’s state action problem. In standing doctrine, as elsewhere, the law distinguishes private from governmental action. There are, simply put, different standing rules for state actors than for private litigants. How should the law sort state actors from private litigants for the purposes of standing? In Hollingsworth v. Perry the Court held that Article III limits government standing to common law agents who owe fiduciary duties to the state. The Perry Court’s apparent concern was the risk of abuse of the power to stand for the government in federal court. This Article critiques the Court’s newfound agency rule, offering an alternative way to address standing’s state action problem.

The reasons for limiting who may stand for the government in court have to do with keeping government power constitutionally accountable, not with Article III’s “Case” or “Controversy” requirement. This constitutional accountability principle sounds in due process and the separation of powers. Abuse of the power of government standing offends constitutional principles that protect life, liberty, and property against arbitrary enforcement. These principles cannot be applied mechanically because due process also supports a right to one’s day in court and a system of remedies to right wrongs. Focusing upon constitutional accountability provides a framework for identifying when standing presents a constitutionally troublesome risk of abuse of government power and determining who may exercise that power under what circumstances. Constitutional accountability presumptively requires public control over government standing. This presumption may be overcome where private law, procedural controls, or auxiliary mechanisms are adequate to ensure private litigants do not abuse their power to stand for the government. The adequacy of these constraints on enforcement discretion depends upon the government interest at stake. Thus, the solution to standing’s state action problem varies with different government interests and the limits in place to reduce the risk of abuse of the power of government standing.

Suggested Citation

Davis, Seth, Standing Doctrine’s State Action Problem (April 3, 2015). Notre Dame Law Review, Vol. 91, No. 2, 2016, UC Irvine School of Law Research Paper No. 2015-45, Available at SSRN:

Seth Davis (Contact Author)

University of California, Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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