Standing in the Shadow of Popular Sovereignty

INTRODUCTIONWho may speak for a state or the United States in federal court? This question lies at the heart of several long-running debates surrounding decisions by state and federal executive officials not to enforce or defend laws based on constitutional objections.1 Such decisions force courts and scholars to grapple with (1) the scope of the executive's duty to defend2 laws the executive believes are unconstitutional,3 (2) whether executive officials have Article III standing to appeal judicial orders declaring a law unconstitutional when they agree with the court's constitutional views,4 (3) whether other parties may play the executive's traditional role defending such laws,5 and (4) whether the legislature may sue the executive for not enforcing a law.6 These debates inevitably involve claims about who may and may not represent the interests of what is variously described as "a State,"7 "the government,"8 or "the People,"9 and this Article describes collectively as "sovereign interests."But the literature has yet to interrogate the implications of the American principle of popular sovereignty for standing to represent sovereign interests.10 Specifically, no one has considered how the fundamental division between sovereignty and the government wrought by the Framers shapes who may and may not speak for sovereign interests in court. Consequently, courts and commentators have conflated political concepts that are distinct in the American political system and encouraged private parties to grasp at the mantle of sovereignty to implement their ideological agendas.11 This Article begins to fill the gap.The ratification of the Constitution fundamentally altered the relationship between the American people and their government. In stark contrast to England, in which all sovereignty was located in Parliament, the Framers consciously denied sovereignty to the government of the new American republic.12 The United States was founded on the principle that "the people"13 retained their sovereignty, with authority over constitutional meaning, while government officials merely served as their agents.14 Indeed, with a keen understanding of the fallibility of human nature, the Framers recognized that government officials could not always be trusted to pursue the public interest. Accordingly, the Framers both denied government officials the authority to act as the sovereign and divided the government into competitive branches to prevent it from intruding on popular sovereignty.15This Article argues that in a republic founded on the American principle of popular sovereignty, no party may claim the sovereign's interest as a basis for standing in constitutional disputes. The Framers did not give any government actor the power to announce the sovereign people's constitutional views.16 American sovereigns do not walk into court with a United States Attorney or a State Attorney General at their side. Like the monotheistic god from whom the concept of sovereignty is derived, the people are omnipotent and omnipresent, yet their will is not always clear. Beyond the confines of clear constitutional text and long-settled constitutional commitments, we do not always know the sovereign's constitutional views.17 Granting government officials the power to announce the sovereign's views would make a mockery of popular sovereignty.18Therefore, we must look closer to earth for the government's standing to defend sovereign interests. It is not grounded in constitutional clairvoyance. Rather, the Framers imposed certain constitutional obligations on government officials. Most importantly, Article II of the United States Constitution, and various state constitutional analogues, direct executive officials to "take Care that the Laws be faithfully executed."19 These constitutional commands, rather than the power to announce the sovereign's views, give the executive standing both to enforce the law and to appeal adverse judgments that impair its ability to do so. …