Litigation over the legality of government action has traditionally taken place in suits between individuals and government or its officials. States were limited in the kind of cases they could bring in the federal courts; states typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) against the federal government. Rather, state standing in the federal courts was historically available when states had common law causes of action similar to those of ordinary litigants. State standing, however, expanded in the twentieth century, sometimes allowing litigation of sovereignty and parens patriae interests. And to the extent states rely on standing similar to that of individuals, the injury-in-fact inquiry poses no significant limitation on state standing. Indeed, injury-in-fact poses less of a limitation on states than on individuals, whose interests (unlike those of states) are inherently limited. The frequency with which states currently bring suits against the federal government suggests that states have become all-purpose advocacy plaintiffs, a result that Article III standing doctrine is generally thought to foreclose.

Some critics of the focus on injury-in-fact suggest that courts should look instead to whether the plaintiff has a cause of action; cause-of-action analysis in turn would focus on whether a plaintiff’s alleged injury was one that the constitutional or statutory provision at issue was meant to obviate. States, however, might easily claim they are the intended beneficiaries of many constitutional and statutory provisions. Limiting state standing may thus require a general presumption that the interests that the Constitution and regulatory statutes protect, particularly in Article III courts, are the interests of individuals. Under such a presumption, state sovereignty interests and parens patriae interests should not generally give the states causes of action against the federal government. And states’ allegations of more individualized injuries should presumptively allow suits only when states are the direct objects of federal government regulation. These presumptions would reinforce the principle that Article III courts do not exist to resolve the policy disputes between governments, and that the legitimacy of the courts’ pronouncing on the legality of government action derives from the necessity of deciding cases of private rights.

Michael G. Collins & Ann Woolhandler, Reining-In State Standing, 94 Notre Dame Law Review, 2015–2031 (2019).