Standing for Nothing

Robert A. Mikos*

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.

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© 2019 Robert A. Mikos. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Vanderbilt University Law School. I thank Brian Fitzpatrick, Paul Edelman, Jonathan Nash, Sean Seymore, and Suzanna Sherry for their helpful comments on drafts of this Essay. I also thank Sarah Dunaway for her diligent research assistance.