When Can a State Sue the United States?

Abstract

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state law. But, contrary to many scholars and jurists, I contend that States do not have a special interest in overseeing the manner in which federal agencies implement federal law. The Supreme Court was therefore wrong to suggest that States deserve “special solicitude” in the standing analysis, when they seek to ensure that the federal executive abides by congressional mandates. States have special standing to protect federalism principles, not the constitutional separation of powers.

Keywords: standing, federalism, separation of powers, Take Care Clause, Article III