Document Type

Working Paper

Publication Date

4-26-2014

SSRN Discipline

Legal Scholarship Network; Social Insurance Research Network; Law School Research Papers - Legal Studies; Administrative Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

Standing "is built on a single basic idea "” the idea of separation of powers" Most often the powers thought to be separated thereby are the three branches of the federal government Less attention has been paid to standing's use in maintaining the proper spheres of activity for the federal and state governments NowJudge William Fletcher addressed this issue in 1990 when he criticized the Supreme Court's paradoxical ASARCO decision and Andrew Hessick has recently argued that diversity cases in federal court which are always predicated on statelaw claims should be judged by the standing doctrine of the alternative state forum rather than by federal Article III standards In this essay I address a third permutation of federalism standing that arose in the recent US Supreme Court case Hollingsworth v Perry The Supreme Court dismissed an appeal of a federal district court's order striking down California's voterenacted ban on marriage between samesex couples because the state officials who would normally defend such laws declined to do so and alternative appellants "” the proponents of the original ballot initiative "” lacked standing Can or should standing in the federal court depend on the state's political structure If it can't or shouldn't do the people of California receive justice The Supreme Court appears to have rejected standing for the proponents based on assignment of claims presumably worried about the consequences of a broad standing holding However the Court could have adopted the California Supreme Court's holding that Proponent standing was essential to vindicating California's ballot initiative system On this narrower logic Proponent standing depends on a fundamental aspect of state governance and applies in many fewer cases

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