North Carolina Law Review

University of North Carolina School of Law

160 Ridge Road

Chapel Hill, NC 27514

The Separation-of-Powers Theory of Standing

March 23, 2017

95 N.C. L. Rev. 673 (2017) 


Under current law, a party must establish Article III standing to bring suit in federal court. According to the Supreme Court, this standing requirement is necessary to protect the separation of powers. It does so by limiting the judiciary to its historical role, preventing the judiciary from resolving disputes better suited to the other branches, protecting the legitimacy of the courts, and restraining Congress from empowering the judiciary to usurp the role of the Executive. This Article argues that these separation- of-powers rationales do not apply to all types of disputes. In particular, they do not apply to suits by private individuals asserting the violation of private rights, nor do they apply to suits seeking to force state officials to act or seeking to exercise a power held by state officials. Dispensing with standing in those cases would remove an unwarranted obstacle to relief for similarly situated plaintiffs, make standing more conceptually coherent, and invigorate standing doctrine in cases that do present salient threats to the other branches. 



Please reload