“Trickle Down” Constitutional Interpretation: Should Federal Limits on Legislative Conferral of Standing Be Imported into State Constitutional Law?

At both the federal and state levels of government, Congress and state legislatures have passed statutes conferring standing onto citizens to litigate in the public interest. These statutes allow citizens to assist in law enforcement and to hold the executive branch accountable to its statutory obligations. However, these conferrals of standing can be constitutionally controversial. At the federal level, the Supreme Court has ruled that statutory conferrals may sometimes impermissibly direct the federal courts to hear cases outside of the judicial power vested by Article III of the Federal Constitution. The Court has also hinted that such conferrals may infringe on the President’s authority over law enforcement. Since many state constitutions diverge from the Federal Constitution in important respects, one might expect state courts to reject the federal courts’ restrictions on legislative conferrals of standing. However, some state courts have imported the federal approach into their state constitutional law. This Note argues that state courts should be hesitant to restrict legislative conferrals of standing. Many state constitutions provide for checks on executive authority that do not exist at the federal level: The state executive is usually divided into separately elected, independent offices. Also, the justiciability rules that limit the role of state courts are typically looser than those restraining the federal courts. Within this context, legislative conferrals of standing—which allow citizens to check and supplement executive power—should frequently be uncontroversial at the state level.