Stand-In Standing

When the interests of a state, or of the federal government, are at issue in a lawsuit, those interests are typically represented by the executive branch. But not always: The U.S. Supreme Court has repeatedly held that states and the federal government may delegate their claims to nongovernmental litigants in some circumstances. But the Court has never defined the exact boundaries of when such “stand-in standing” is permitted. And states have recently begun to exploit this doctrinal uncertainty by enacting laws that are arguably—and in some cases flagrantly—unconstitutional but outsourcing the enforcement of those laws to private individuals.

The avowed goal of the architects of these laws is to circumvent Ex parte Young and prevent pre-enforcement judicial review of these laws by depriving state officials of enforcement powers. This Article proposes a solution: a coherent, comprehensive doctrine of stand-in standing.