State Standing to Constrain the President

28 Pages Posted: 26 Apr 2018

See all articles by F. Andrew Hessick

F. Andrew Hessick

University of North Carolina School of Law

William Marshall

University of North Carolina School of Law

Date Written: April 9, 2018

Abstract

In Federalist 51, James Madison said that the ambition of Congress would check the President. But in recent times, Congress has failed to play that role. Presidential ambitions now frequently overwhelm the ambitions of Congress. Against this backdrop, states have become increasingly aggressive in checking the President by filing suit in federal courts. But these suits have raised important questions of Article III standing. This symposium essay argues that, because states are particularly well suited to bring these suits, Article III standing law should accommodate them. At the same time, however, to avoid overly politicizing the courts, the essay suggests that courts develop prudential doctrines, such as limiting state suits that rest on partisan instead of structural interests.

Keywords: standing, federalism, separation of powers, Article III

Suggested Citation

Hessick, F. Andrew and Marshall, William, State Standing to Constrain the President (April 9, 2018). Chapman Law Review, Forthcoming, UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3159240

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

William Marshall

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
42
Abstract Views
378
PlumX Metrics