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Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.

This paradox arises at the intersection of three distinct areas of doctrine:

(1) a newly sharpened requirement of concrete injury under Article III that bars a wide swath of federal claims from being brought in federal court;

(2) a general presumption that state courts can decide federal claims; and

(3) the fact of our federalism that states are free to define the jurisdiction of their own courts, including by rejecting federal standing doctrine, as many states do.

At the confluence of these factors lies the unintended consequence that standing doctrine is shifting claims arising under important swaths of the United States Code to the sole jurisdiction of state courts. This is perplexing because the literature teaches that federal courts have an essential role to play in the adjudication of federal claims, and Congress has assigned an ever-expanding set of federal claims to the original jurisdiction of federal courts. This paradox also threatens to undermine one of the key benefits of federal law itself - uniform, nationwide standards - by rendering federal law a patchwork quilt of enforceability, subject to the vagaries of state law. And it threatens to transform Article III’s limitation of the judicial power into a limitation on legislative power, committing a category error about the role that Article III plays in the structural constitutional order.

Yet despite these grave costs, this paradox resists easy solutions. Each possible resolution bumps up against some important principle of our federal judicial system: legislative supremacy, the distinction between jurisdiction and merits, the limitation of the federal judiciary to deciding actual controversies, the distinct sovereignty of the states, and the supervisory power of the Supreme Court over questions of federal law. The paradox therefore highlights the unintended consequences and hidden trade-offs of novel jurisdictional limitations given the interlocking nature of our judicial federalism. Its resolution becomes a mirror into one’s commitments as between the values of federalism, separation of powers, and the purpose of federal law.



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