State Standing and National Injunctions

30 Pages Posted: 7 Mar 2019 Last revised: 7 Aug 2019

See all articles by Bradford C. Mank

Bradford C. Mank

University of Cincinnati - College of Law

Michael Solimine

University of Cincinnati - College of Law

Date Written: February 19, 2019

Abstract

Two controversies currently roiling federal courts scholarship are whether and to what extent States have standing as plaintiffs in federal court, and when if ever federal courts can issue nationwide injunctions against governmental actions, even when only one or a small number of States or other parties have brought suit. While both issues have arisen in the same litigation, such as Massachusetts v. EPA and, more recently, the Texas v. United States challenge to DACA, rarely are they discussed or considered together in any systematic manner.

This article undertakes that task. Part I of the Article addresses the issue of State standing, and argues that such standing is well-grounded in the traditional parens patriae powers of States, and should be permitted to protect the health, welfare and natural resources of their citizens. That is, courts should permit States to have standing under somewhat relaxed criteria as compared to what private plaintiffs must show. Part II turns to national injunctions, discusses the recent increases in the issuance of those decrees, and explores the controversy over when if ever federal courts possess powers under equity or standing criteria to bind the entire nation.

Part III addresses both topics in a coordinated manner. It outlines the pathologies of one or more States bringing suit, particularly in the partisanship demonstrated by States led by attorneys generals or governors of States from the same political party suing to stop the actions of a Presidential Administration of a different party. Allowing such suits also can improperly intrude on policymaking best left to Congress and the President. While States in some circumstances have standing to sue, it does not automatically follow that even when successful that the entire nation should be subject to an injunction. Rather, we propose two alternatives to the simple dichotomy that courts always, or never, have authority to issue such injunctions. One option is simply that only the States that are parties to the suit can be subject to the injunction. A second option is to allow the possibility of nationwide injunctions, but before issuing such decrees, courts should take into account factors such as the number, and geographic and partisan diversity, of the States, who (attorney general or governor) is representing a state, and which one or more States are opposing the decrees, as parties or amici curiae. These criteria would better inform and integrate judicial consideration of State standing and national injunctions when they arise in the same case.

Keywords: state standing, national injunctions, equity, standing criteria, partisanship

JEL Classification: K40, K41

Suggested Citation

Mank, Bradford C. and Solimine, Michael, State Standing and National Injunctions (February 19, 2019). Bradford C. Mank & Michael E. Solimine, State Standing and National Injunctions, 94 Notre Dame L. Rev. 1955 (2019).. Available at SSRN: https://ssrn.com/abstract=3340142

Bradford C. Mank (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)

Michael Solimine

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0102 (Phone)
513-556-1236 (Fax)

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