Standing for Nothing

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such “protective” standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited—that it opens the doors to the federal courthouses a crack but does not swing them wide open.

This Essay, however, contests both of these claims, and thus, the normative case for protective state standing. It demonstrates that states do not actually need protective state standing to enforce or defend their laws. Rather, if states need it at all, it is for an altogether different and more controversial purpose: to attack federal law. Indeed, the Essay shows that notwithstanding the assurances of its proponents, protective standing could enable the states to challenge virtually any federal policy they find disagreeable in federal court, making them “roving constitutional watchdogs” over the federal government.