Constitutional standing doctrine requires that a private party seeking to defend the validity of a state statute must possess a “particularized” interest in the statute’s validity. When California officials refused to defend the constitutionality of Proposition 8, no one, not even the initiative’s official ballot sponsors, could demonstrate standing in order to defend the statute in federal court. This outcome led many to assume that state attorneys general could easily invalidate popular initiatives through nondefense, establishing a new form of veto. By applying public choice theory to constitutional standing doctrine, this Note argues that only certain statutes will lack private-party defendants, because most laws distribute particularized private benefits. The group of statutes vulnerable to an attorney general veto includes statutes like Proposition 8, but also many environmental and campaign finance laws, among others. Importantly, statutes enacted both by the state legislature and via initiative are vulnerable to the veto. After discussing the circumstances necessary for an attorney general veto to occur and why initiatives have so far been the major targets, this Note discusses the normative implications of this power. This Note then reviews proposed reforms designed to limit the veto’s use and concludes that structural modifications to formalize the process are the best solution.
Columbia Law Review THE ATTORNEY GENERAL VETO