Reining in State Standing

Ann Woolhandler* & Michael G. Collins**

In upholding standing in Massachusetts v. EPA, Justice Stevens said that states “are not normal litigants for the purposes of invoking federal jurisdiction.”¹ While one might agree that the states are not normal litigants,² that abnormality might well suggest that states should get standing less easily than private parties.³

As a historical matter, states were limited in the kinds of cases they could bring in the federal courts. States typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) against the federal government. Rather, state standing in the federal courts was traditionally available only when states had common-law or equity actions similar to those of ordinary litigants. State standing, however, expanded in the twentieth century, sometimes allowing litigation of sovereignty and parens patriae interests. And to the extent states rely on standing similar to individuals, the current injury-in-fact test further increased states’ ability to sue. Indeed, as applied to states, we suggest that the injury-in-fact test poses no significant limitation on standing to sue the federal government.

If one believes that standing doctrine is an important structural limitation on the federal courts’ ability to make pronouncements of law restraining the political branches and other parties,⁴ then the upsurge of state-initiated suits is a matter of concern.⁵ Some critics of the injury-in-fact test, even as applied to individuals, suggest that courts should look more directly at whether the plaintiff has a cause of action. Cause-of-action analysis in turn would focus on a “substantive judgment[ ] concerning the protections that particular provisions of law confer.”⁶ Greater focus on the protections that the Constitution and statutes confer, however, is unlikely to significantly limit state standing. States might easily claim they are the intended beneficiaries of many constitutional provisions as well as of regulatory statutes.

Limiting state standing through focus on cause of action rather than injury in fact may thus require a return to a general presumption that the interests that the Constitution and regulatory statutes protect, particularly in Article III courts, are the interests of individuals. Under such a presumption, state sovereignty interests and parens patriae interests should not generally give the states causes of action against the federal government.⁷ And as to allegations of more individualized state injuries in fact, states should presumptively be limited to bringing suits only when they are the objects of federal government regulation.

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© 2019 Ann Woolhandler & Michael G. Collins. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*William Minor Lile Professor of Law, University of Virginia.

**Joseph M. Hartfield Professor of Law, University of Virginia. Our thanks to Katherine Mims Crocker, John Harrison, Jonathan Nash, Caleb Nelson, and George Rutherglen for comments, and to Tyler Green and Rebecca Lamp for research assistance.

1 549 U.S. 497, 518 (2007); see also id. (“It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan [v. Defenders of Wildlife, 504 U.S. 555 (1992)], a private individual.”).

2 See Richard H. Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061, 1105 (2015) (noting that the Court’s development of the current tripartite standing test mostly involved private parties and that concepts related to such challenges are awkward when applied to governments as plaintiffs or appellants); id. at 1109–10 (suggesting that the Court should make explicit that standing for private parties and states differ in some contexts, although not venturing into specifics).

3 See, e.g., Tara Leigh Grove, When Can a State Sue the United States?, 101 Cornell L. Rev. 851, 854–55 (2016) (arguing that states should not be entitled to special solicitude in standing, except where they “seek to enforce or defend state law” and “to challenge federal statutes and regulations that preempt, or otherwise undermine the continued enforceability of, state law,” and asserting that states “do not have a special interest in the manner in which the federal executive enforces federal law” (emphasis omitted)).

4 Paul Nolette, Federalism on Trial 5 (2015) (expressing concerns in the context of state standing for the “increasing judicialization of American politics,” and concerns as to muddying accountability); Tara Leigh Grove, Government Standing and the Fallacy of Institutional Injury, 167 U. Pa. L. Rev. (forthcoming 2019) (manuscript at 42, 45–47), https:// ssrn.com/abstract=3134464 (arguing that limits on standing constrain and protect the judiciary).

5 Grove, supra note 3, at 856 (“[A] more expansive definition of special state standing might threaten to erode the limits on the Article III judicial power—by enabling every dispute between a State and the federal government to wind up in court.”); see also infra text accompanying notes 71–80.

6 See, e.g., Fallon, supra note 2, at 1068–69, 1108; see also infra notes 61–67 and accompanying text.

7 This Essay particularly focuses on the state suits against the federal government or federal officials.