Securing Sovereign State Standing

52 Pages Posted: 30 Aug 2011 Last revised: 17 Nov 2018

Date Written: November 21, 2011

Abstract

There are three main categories of interests upon which states can premise standing to sue as plaintiffs in federal court - proprietary, sovereign, and quasi-sovereign interests. Proprietary and sovereign interests, this Note contends, are held independently by states qua states, whereas quasi-sovereign interests are derivative of citizens’ collective welfare interests. This Note attempts to correct the pervasive confusion clouding the boundary between sovereign and quasi-sovereign interests, arguing that they are meaningfully distinct and should be treated differently.

This argument is especially important in the context of the jurisdictional bar instituted by the Supreme Court in Massachusetts v. Mellon, which prohibits states from pursuing 'parens patriae' suits to shield their citizens from federal law. Parens patriae is a special type of representative standing through which states can vindicate generalized citizen interests. This Note argues that states act as parens patriae in the relevant context when they assert quasi-sovereign standing only - and thus not when they seek to defend their sovereign interests. The Mellon bar, therefore, should disallow only certain quasi-sovereign suits; it should be wholly inapplicable to sovereignty-vindicating claims.

Finally, a look at Virginia’s current attack on the constitutionality of recent federal healthcare reform, Virginia ex rel. Cuccinelli v. Sebelius, sharpens and contextualizes these issues. Virginia has asserted purely sovereign interests, but the federal government defendant has argued that the Mellon bar should nevertheless apply.

This discussion is both timely, given the immediacy and prominence of the standing issues underlying the Virginia healthcare challenge, and significant, given its importance for fundamental and enduring issues of American federalism.

Keywords: state standing, sovereign state standing, state sovereignty, sovereign interests, parens patriae, Massachusetts v. Mellon, Virginia ex rel. Cuccinelli v. Sebelius, Patient Protection and Affordable Care Act, PPACA, Affordable Care Act, ACA

Suggested Citation

Crocker, Katherine Mims, Securing Sovereign State Standing (November 21, 2011). Virginia Law Review, Vol. 97, p. 2051, December 2011. Available at SSRN: https://ssrn.com/abstract=1919353

Katherine Mims Crocker (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90360
Durham, NC 27708
United States

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