Author:Crocker, Katherine Minis
Position:Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing

INTRODUCTION 2058 I. STATE STANDING AND ORGANIZATIONAL STANDING 2059 A. State Standing 2061 B. Organizational Standing 2067 II. STATE STANDING ALONGSIDE ORGANIZATIONAL STANDING? 2069 A. Proprietary 2070 B. Sovereign State Standing 2072 C. Quasi-Sovereign State Standing 2074 1. Constituent Standing 2074 2. Germaness to Purpose 2080 3. Individual Participation 2084 CONCLUSION 2089 INTRODUCTION

"It is almost de rigueur for articles on standing to quote Professor Freund's testimony to Congress that the concept of standing is 'among the most amorphous in the entire domain of public law.'" (1) But what matters for present purposes is that the concept of standing is perhaps no more amorphous than when applied to states. Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court. Controversy and confusion are especially evident in cases where state plaintiffs seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration's environmental policies to the Obama administration's immigration actions to the Trump administration's travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much hand wringing and head scratching? Two aspects of many state-plaintiff suits that seem to engender special concern are their public-law nature and representational quality. (2) But these features are by no means limited to state-plaintiff suits. And in any event, the genies are out of their bottles: public-law litigation and representational actions are here to stay. (3)

Accordingly, as Professors Margaret Lemos and Ernest Young have recently written, " [a] n important response to criticisms of state litigation... is to ask" a "largely ignored" question: "[C]ompared to what?" (4) As it turns out, so-called "aggregate litigants" are regularly allowed to accumulate the interests of individuals or entities in other contexts, like class actions. (5) One kind of aggregate litigant is the organizational plaintiff. (6) And " [w]hen states sue to enforce the Clean Air Act or the securities laws, or to challenge the [Affordable Care Act] or the Trump travel bans, they are playing a similar role to the Sierra Club [or] the ACLU." (7)

This Essay explores in depth--and with a focus on standing considerations, especially in cases against federal-government defendants--the comparison between states and organizations suggested by Lemos and Young's wider-ranging article. The Essay contends, in short, that one can see state standing and organizational standing as fitting either side by side (in the sense that state standing runs parallel to organizational standing) or hand in glove (in the sense that state standing represents a species of associational standing). Along the way, the Essay suggests that states compare favorably to other associations across multiple institutional dimensions related to representational capacity. Consequently, the Essay concludes that the legal community should feel at least as comfortable with lawsuits led by states as with lawsuits led by other associations.

This Essay proceeds as follows. Part I introduces the doctrines of state standing and organizational standing and provides a series of case studies to which the remainder of the piece refers. Part II then traces the congruence between these doctrines. This discussion touches on--and sometimes suggests doctrinal tweaks for--a number of hot-button issues. These include the asserted connection between states' incidental proprietary injuries and generalized grievances, the purported problem of manufactured sovereign state standing, the question whether quasi-sovereign state standing requires citizen standing, the rule that quasi-sovereign state standing must involve widespread harm, and the jurisdictional bar that blocks such standing in cases against federal-government defendants. The analysis concludes that in light of the similarities in doctrine and a preliminary comparison of institutional characteristics, state standing should be at least as well accepted, and at least as wide ranging, as organizational standing is.


    Before outlining state standing and organizational standing in particular, a few words on standing in general are in order. Standing is supposed to "identify those disputes which are appropriately resolved through the judicial process." (8) The all-too-familiar formulation for the doctrine includes three elements--an "injury in fact,"a"causal connection between the injury and the conduct complained of," and a "'likel[ihood]'... that the injury will be 'redressed by a favorable decision.'" (9) Other common aspects of standing doctrine require that plaintiffs assert an injury not shared by too large a proportion of the population and that plaintiffs litigate their own claims rather than the claims of others. (10)

    Courts generally regard these rules as comprising both "constitutional" and "prudential" components, with the former deriving from Article Ill's case-or-controversy requirement and the latter deriving from "judicial self-governance" aimed at avoiding matters where resolution by courts would be unwise or unnecessary. (11) As previous scholarship has argued, however, this framework seems far too facile. For one thing, the dividing lines between constitutional and prudential concerns are shadowy and shifting. (12) For another thing, scholars have long debated the fit between current doctrine and historical understandings of constitutional limitations on the judicial power, thus casting the contours of "constitutional" standing conditions into further doubt. (13)

    Reexamining standing rules from first principles, then, is a worthy endeavor. (14) But it is an endeavor that lies beyond the realistic range of this Essay. For present purposes, therefore, I treat the general architecture of the Supreme Court's standing (and other) jurisprudence as fixed, suggesting only modest renovations to the particular corners under consideration here. (15)

    1. State Standing

      Questions surrounding the standing of state plaintiffs often focus on the injury element of the doctrine's tripartite expression. According to the Supreme Court, to provide standing, an injury must constitute the "invasion of a legally protected interest which is (a) concrete and particularized and (b) 'actual or imminent, not "conjectural" or "hypothetical."'" (16) As I have described elsewhere, caselaw outlines three main categories of interests that can provide states standing to sue in federal court. (17)

      First are "proprietary" interests. Often related to a state's role as property owner, these interests are generally economic in nature, and they are ones that private plaintiffs in the state's position could also assert. As the Supreme Court has observed, "a State is bound to have a variety of proprietary interests," like "own[ing] land or participat[ing] in a business venture." (18) And, the Court has explained, "[a]s a proprietor, [a State] is likely to have the same interests as other similarly situated proprietors" and "may at times need to pursue those interests in court." (19)

      For a recent--and controversial--example of proprietary state standing involving federal-government defendants, consider the Texas-led lawsuit challenging the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program, which sought to delay deportation for certain immigrants with children who were American citizens or residents. The Fifth Circuit held that Texas had standing to sue because DAPA beneficiaries would have become eligible for driver's licenses, which would have cost the State $130.89 each. (20) The Supreme Court affirmed with a tie vote in United States v. Texas. (21)

      Or consider the case in which Hawaii challenged the legality of a Trump-administration ban against travel to the United States by individuals from certain predominantly Muslim countries--an issue that the Supreme Court later addressed in Trump v. Hawaii (22) at the Supreme Court. Citing Texas, the Ninth Circuit held that "[t]he State's standing can... be grounded in its proprietary interests as an operator of the University [of Hawaii]" because, among other things, "students who are unable to attend the University" because of the travel ban "will not pay tuition." (23)

      The second category of interests that can provide states standing to sue in federal court are "sovereign" interests. These are interests in a state's "core ability to govern." (24) The Supreme Court has described them as involving "the maintenance and recognition of borders," as well as "the power to create and enforce a legal code." (25) And scholars have described them as underlying a state's suit "to establish its authority to exercise legislative, executive, or judicial power within a particular territory or over a particular subject matter." (26) In light of these descriptions, one can think about sovereign interests as tracking a state's stake in its jurisdiction, meaning "both (1) the geographic scope over which a government exercises power and (2) whether it has authority to do so." (27)

      Border disputes provide obvious examples. In a case that the Supreme Court decided in 1838, for instance, Rhode Island sued Massachusetts on the theory that "the government of Massachusetts, about 1719, wrongfully possessed herself of a tract of land more southerly than a true line would be drawn" under a series of seventeenth-century charters tracing back to the King of England. (28) The Court took jurisdiction of the case, notwithstanding Chief Justice Taney's argument in dissent that "[c]ontests for rights of sovereignty and jurisdiction between states over any particular territory"--as distinguished from...

To continue reading