Notre Dame Law Review
Notre Dame L. Rev.
This essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part V acknowledges that although the Constitution does not prohibit state standing to sue the federal government for disobeying the law, there may be nonconstitutional reasons to limit the states’ ability to sue the federal government. But it argues that for structural reasons, Congress, and not the courts, is the appropriate body to impose those subconstitutional limitations.