38 Am. J.L. & Med. 410 (2012).

Originally uploaded at SSRN.


The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by cataloguing lower court ACA standing decisions involving state, individual, and association plaintiffs to demonstrate the type of particularized injury allegation that suffices for Article III standing. It then explains how states could similarly allege present-day economic harm resulting from the individual mandate. While states may have no greater claim to judicial review of federal laws than individuals, they should not have any less.