State Standing to Constrain the President
28 Pages Posted: 26 Apr 2018
Date Written: April 9, 2018
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
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