27 Pages Posted: 10 Mar 2019
Date Written: February 19, 2019
Under current law, the ability of states to sue the federal government is limited. A state has standing to assert quasi-sovereign interests in protecting the welfare of its populace. It can assert those interests in its capacity as parens patriae—that is, as representative of the state’s residents. Despite the potential breadth of quasi-sovereign standing, a state cannot sue as parens patriae the federal government for failing to comply with federal law or the Constitution. Instead, the United States itself, which also represents the residents of a state, is the appropriate body and not the states to ensure that it complies with federal and Constitutional law.
This Article challenges this limitation on states’ ability to sue the federal government and seeks more broadly to make sense of quasi-sovereign standing. It makes two points. First, it argues that parens patriae is the wrong frame to evaluate state standing to assert quasi-sovereign interests because the states themselves, not their residents, hold those interests. It is therefore irrelevant whether the state or the United States is the appropriate body to assert the resident’s interests. Second, the Article argues that states should be able to assert this quasi-sovereign interest against the United States for three reasons. Doing so is consistent with states’ role of enforcing the laws, allows states to act as a check on the federal government, and aligns with the purposes of extending Article III jurisdiction to suits in which states are a party.
Keywords: federalism, standing, article iii, constitutional law, justiciability, federal courts
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