Standing Doctrine's State Action Problem

Seth Davis*

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 III’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.

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© 2016 Seth Davis. Individuals and nonprofit institutions may reproduce and distribute copies of this Article 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.

*Assistant Professor of Law, University of California, Irvine School of Law. E-mail: sdavis@law.uci.edu. I would like to thank Lisa Sandoval for her careful review of multiple drafts, and Mario Barnes, Samuel Bray, Sergio Campos, Erwin Chemerinsky, Michael Coenen, Tessa Davis, Catherine Fisk, Michele Goodwin, Tara Leigh Grove, Sharon Jacobs, Evan Lee, Jack Lerner, Christopher Leslie, Gillian Metzger, Michael Robinson-Dorn, Greg Shaffer, Seth Stoughton, Ann Southworth, Mark Tushnet, Susannah Barton Tobin, Chris Whytock, and Ryan Williams for their comments. This Article was selected for the Seventh Annual Junior Federal Courts Workshop at the University of Georgia School of Law and I thank the participants in the Workshop, as well as participants in a workshop held at the University of California, Irvine School of Law, for their comments.