On Objects and Sovereigns: The Emerging Frontiers of State Standing

Abstract

For almost as long as advocates have sought to promote social change through public law litigation in the federal courts, some judges in those same courts and the litigants sued in them have engaged in a conscious and concerted effort to limit this type of litigation and its ability to bring about such change. Courts have erected procedural barriers to such lawsuits, the most important of which, perhaps, has been standing doctrine, which places limits on who can bring such suits. This doctrine, as it has evolved over the years, has tended to privilege what can only be called “private law” plaintiffs and private law harms in the standing analysis. Thus, the procedural jurisprudence of standing has made public law litigation more difficult to commence, prosecute, and maintain.

In recent years, however, despite the trend away from permitting public law litigation to serve as a means of advancing social change, state governments have pursued sweeping lawsuits in a wide range of areas, from health care to immigration policy. Whether it is states seeking relief from the Patient Protection and Affordable Care Act, or serving as a check on Executive Branch action on immigration and refugee policy, states have brought very public law litigation and have sparked a dialogue about the proper reach of federal authority in doing so. For states to participate in this dialogue, however, they require standing to bring such actions and the authority to commence and sustain them against the federal government.

Historically, the power of states, in their capacity as parens patriae (that is, on behalf of their citizens) to sue the federal government has been limited. Moreover, standing doctrine has narrowed in recent decades to curtail suits by “public” plaintiffs seeking to vindicate broad legal interests on behalf of third parties, as the parens patriae authority traditionally has done. Yet, despite these apparent limitations on state power to pursue public law actions against the federal government, over the last decade, states have overcome barriers to such suits, including, most recently, when several states sued the Trump Administration over several Executive Orders that attempted to ban travel from a group of predominantly Muslim countries.

This Article attempts to review this decade-long phenomenon, which spans presidential administrations of different parties, including discussing the pending actions challenging President Trump’s most recent Executive Orders on immigration, to assess the nature of the harms that states are alleging to determine the validity of such standing claims and explore some of the reasons for the success many of these suits have had to date, at least in terms of their ability to establish state standing to sue. Despite the fact that the cases states are pursuing are very public in nature, those states, as litigants, are alleging narrow harms and injuries to the states’ own interests: typically in the form of injury to a proprietary economic interest or to property owned by the state. Because of this, perhaps, they are achieving success in establishing standing. For these reasons, although states are pursuing very “public law” litigation, they are asserting very private law injuries and having consistent and sustained success in doing so.

Despite the trend against public law litigation in recent years, manifest in the imposition of procedural barriers to such suits, particularly the imposition of limits on standing, courts have shown a willingness to grant standing to state-litigants alleging these private law harms, even though those state litigants are prosecuting very public law litigation. This Article explores these issues and attempts to uncover the implications of these strategic decisions by states and their likely impacts on both standing jurisprudence and federalism, now and into the future.

Keywords: State Standing, Immigration Ban

JEL Classification: K41