Standing doctrine's state action problem.

• Author: Davis, Seth
• Position: Abstract through III. Government Standing and Constitutional Accountability C. Explaining Why Government Standing Must Be Constitutionally Accountable 1. Constitutional Structure, p. 585-615

ABSTRACT

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 Ill'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 in any particular case 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.

INTRODUCTION I. THE PROBLEM A. The Differences Between Government Standing and Private Standing 1. Sweeping Interests and Special Solicitude 2. Judicial Disfavor B. Article III and Standing's State Action Problem 1. United States v. Windsor 2. Hollingsworth v. Perry II. STANDING AS A GOVERNMENT POWER A. Private Standing and Government Powers B. Government Powers and Public Rights III. GOVERNMENT STANDING AND CONSTITUTIONAL ACCOUNTABILITY A. Exclusive Public Control B. Article III and Private Delegations C. Explaining Why Government Standing Must Be Constitutionally Accountable 1. Constitutional Structure 2. Due Process a. Arbitrary Enforcement i. Criminal Law and Procedure ii. Civil Procedure and Remedies b. The Right to One's Day in Court D. Keeping Government Standing Constitutionally Accountable 1. The Basic Framework a. Standing for a State b. Standing for the United States 2. Distinguishing Among the Four Government Interests a. Corporate Interests i. States ii. United States b. Institutional Interests i. States ii. United States c. Substitute Interests i. States ii. United States d. Administrative Interests i. States ii. United States IV. EVALUATING THE CONSTITUTIONAL ACCOUNTABILITY APPROACH TO GOVERNMENT STANDING A. Applications 1. Defendant Standing 2. Standing to Appeal 3. Criminal Prosecution 4. Legislative Standing 5. Preclusion B. Objections 1. Federalism 2. Standing Minimalism CONCLUSION INTRODUCTION

Standing doctrine has a state action problem. There are different standing rules for state actors than for private litigants. Standing doctrine requires private litigants to show a concrete, imminent, and personal injury-in-fact traceable to the defendant and redressable by a judicial remedy. (1) Yet the doctrine does not require the same showing from government litigants. A government litigant may litigate "generalized grievances" and need not show a personal injury-in-fact to have standing. (2) In some cases, however, standing rules impose an "additional hurdle" to government claimants. (3) These different standing rules create standing's state action problem. The doctrine must sort state actors from private litigants to determine which standing rules apply. In state action doctrine, we recognize that the distinction between state actors and private parties is not self-evident. (4) Standing's state action problem has gone unnoticed by comparison, (5) and the doctrine does not solve it.

The 2013 marriage equality cases brought standing's state action problem into sharp focus. In both United States v. Windsor (6) and Hollingsworth v. Perry, (7) individuals challenged laws that denied marriage equality. In both cases executive officials refused to defend the laws against constitutional challenge. And in both cases other litigants sought to defend the laws on appeal. In Windsor, the Court permitted the "federal government to bifurcate its standing" (8) between the executive branch, which had constitutional standing, though it refused to defend the Defense of Marriage Act, and a group of Congressmen who provided the "substantial argument for the constitutionality" of DOMA necessary for prudential standing. (9) In Perry, by contrast, the Court held that Article III prohibits states from bifurcating their standing by delegating the authority to defend a state constitutional amendment, in this case California's Proposition 8, to its private proponents. Citing the Restatement (Third) of Agency, the Court reasoned that Proposition 8's proponents lacked standing because "[u]nlike California's attorney general," they "answer[ed] to no one" and thus were "plainly not agents of the State." (10) Something more than the meaning of Article Ill's "judicial Power" is at stake when the Court finds it necessary to incorporate the Restatement (Third) of Agency into standing law. Put simply, Article III cannot solve standing's state action problem because Article III did not create it. (11)

To understand government standing, this Article shifts the focus from Article III to a principle of constitutional accountability concerned with "the arbitrary exercise of the powers of government." (12) It argues that the solution to standing's state action problem depends upon the government interest at stake and the limits in place to reduce the risk of abuse of the power of government standing.

For all its failings, state action doctrine reflects a fundamental principle of our constitutional system: any exercise of governmental power must be legally accountable. (13) This principle of constitutional accountability follows from the Due Process Clauses, which demand that government actions be based upon public reasons rather than raw preferences, (14) and the separation of powers, which precludes delegations of authority that shield those wielding government power from constitutional accountability. The constitutional accountability principle limits "outsourc[ing] ... decisional authority to private parties--authority that binds other private parties in the government's name." (15) Neither courts nor scholars have explored the link between constitutional accountability and standing. Yet focusing upon it makes sense of standing's state action problem. The problem is to identify which instances of standing trigger constitutional accountability concerns and to limit government standing so as to address these constitutional concerns.

This Article argues that standing to litigate government interests on the government's behalf triggers constitutional accountability concerns but that, contra Perry, the Constitution does not require legislatures to limit the power of government standing to only traditional government employees and common law agents of the state. Traditional state actors may stand for the government because they are subject to constitutional, statutory, regulatory, and professional constraints designed to ensure that they will exercise the power of government standing for public reasons. Formally private litigants may stand for the government where there are sufficient protections, short of denying standing outright, for the rights of defendants and third parties who may be harmed by arbitrary litigation on the government's behalf.

It is an especially apt moment to explore the link between government standing and constitutional accountability. The Court's 2013 marriage equality cases crystallized the problem: in going beyond Article III to invoke the Restatement (Third) of Agency, the Perry Court unwittingly made clear that government standing concerns much more than the Article III case or controversy requirement. It concerns limits on who may exercise government power. The Court's recent decision in DOT v. Association of American Railroads underscored the potential separation-of-powers and due process limits on delegations of lawmaking authority, (16) and Justice Alito's concurrence suggested these limits apply as well to a "citizen suit to enforce existing law." (17) Standing's state action problem, in short, concerns the limits on who may wield the power of government standing.

This Article's analysis of that problem unfolds as follows. Part I describes standing doctrine's different rules for government and private standing, which create standing's state action problem. It then focuses upon the Court's decisions in Windsor and Perry to show that Article III cannot identify when standing involves a government power or determine which actors may exercise the power of government standing.

Part II identifies when standing involves a government power by considering the interests a litigant aims to stand for in court. (18) Standing involves a...