Author:Hessick, F. Andrew
Position:Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing


Government power is divided between the states and federal government. States have general government authority within their borders, while the federal government has only limited powers but jurisdiction over the entire country. One reason for this division of power is to guard against the abuse of government power. As James Madison put it, "[t]he different governments will control each other." (1) But the balance of power established by the Constitution has shifted over time. Changes in technology, commerce, politics, and various other areas have led to the expansion of federal power. Broad interpretations of Article I have expanded the realm of federal policymaking, and the rise of administrative agencies has expanded the power of the federal executive branch.

These expansions suggest a greater need for oversight to ensure that the federal government does not abuse its power. That task has fallen to the courts. Courts no longer play only their traditional role of resolving disputes between individuals. (2) They now regularly review agency actions and assess the constitutionality of federal statutes. (3)

But courts cannot always effectively ensure federal compliance with the law. One impediment is the law of standing. Ordinarily, for an individual to have standing, he must demonstrate that he has suffered a particularized, concrete injury in fact. (4) For this reason, individuals cannot sue the United States simply for violating the Constitution or federal law. (5) The injury from disobedience is "undifferentiated and 'common to all members of the public,'" (6) and redressing that injury thus is a task for "the political branches." (7) To have standing to proceed in federal court, the individual must establish that he suffered a factual injury because of the failure to obey the law.

But for states, things are different. Like private persons, states can establish standing by demonstrating that they have suffered or are about to suffer an injury in fact. But states are not individuals; they are sovereigns, and in that capacity they have the power to protect the public interest. For that reason, the Supreme Court has developed two strands of doctrine supporting broader state standing. First, states can establish standing by demonstrating a violation of a sovereign interest, such as a violation of a state law. (8) Second, states have standing to vindicate so-called quasi-sovereign interests--an ill-defined category of interests that roughly captures the state's interest in protecting its populace. (9) Because quasi-sovereign interests protect state residents, the Court has held that states have standing to press those interests in their capacity as parens patriae--as the representative of the residents. (10)

This latter type of standing would seem to support state standing to sue the federal government for not obeying federal law and the Constitution. After all, those laws exist for a reason; they reflect a judgment that their observance will improve society. States accordingly have a quasi-sovereign interest in seeing that they are observed.

Nevertheless, judges have concluded that states do not have standing based on their quasi-sovereign interests to sue the United States for not obeying the law. Two different reasons have been given. First, because a state can assert quasi-sovereign interests only in its capacity of representing its residents, a state has standing to press those interests only if it can demonstrate that its residents have suffered an injury in fact. (11) On this view, states do not have general standing to sue the federal government for disobeying the law; they have standing only if they can show that the disobedience injured a resident. Second, states are not the appropriate bodies to represent as parens patriae the interests of their residents in seeing the United States comply with the law. Instead, the United States itself, which also represents the residents of a state, is the appropriate body to ensure that it complies with federal and constitutional law. (12)

This Essay challenges these conclusions. It does so in two ways. First, it argues that parens patriae is the wrong frame to evaluate state standing to assert quasi-sovereign interests. The states themselves, not their residents, hold quasi-sovereign interests. A state that asserts those interests is not acting in a representative capacity; it is asserting its own interest. Therefore, it is irrelevant to the state's standing whether the resident has suffered a harm. And it is irrelevant whether the state or the United States is the appropriate body to assert the resident's interests.

Next, the Essay argues that states should be able to assert this quasi-sovereign interest against the United States for three reasons. First, states have the primary responsibility for enforcing the law and ensuring the safety of society. Second, they act as a check on the federal system. Third, permitting states to pursue those claims aligns with the purposes of extending Article III jurisdiction to suits in which states are a party.

The Essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part V acknowledges that although the Constitution does not prohibit state standing to sue the federal government for disobeying the law, there may be nonconstitutional reasons to limit the states' ability to sue the federal government. But it argues that for structural reasons, Congress, and not the courts, is the appropriate body to impose those subconstitutional limitations.


    Standing defines who may bring suit in federal court. It has both constitutional and prudential components. The constitutional standing doctrines implement the "case" and "controversy" limitation in Article III. To have Article III standing, the plaintiff must assert the violation of a legally protected interest. Prudential standing doctrines do not derive from the Constitution, but instead are judicially created limitations on federal jurisdiction. Prominent among those doctrines is the restriction on third-party standing. Even when a party has Article III standing to bring suit, that party ordinarily cannot assert the rights of another individual. If a plaintiff fails to establish Article III or prudential standing, the court must dismiss for lack of jurisdiction. (13)

    For the most part, cases discussing standing have focused on Article III standing. According to the Court, the driving force behind Article III standing is the separation of powers. (14) Standing's requirements aim to prevent the federal courts from usurping the role of the political branches of government. As the Court has put it, standing "is founded in concern about the proper--and properly limited--role of the courts in a democratic society." (15) Standing achieves this goal by confining the judicial power to resolving disputes that were "traditionally amenable to, and resolved by, the judicial process." (16)

    The Court has identified three different types of interests that can support state standing. First, a state can establish standing by demonstrating that it has suffered an injury in fact to its proprietary interests. (17) Second, a state can establish standing by demonstrating a violation of the state's sovereign interests. (18) Third, a state can establish standing to its quasi-sovereign interests. (19) When a state asserts these sovereign or quasi-sovereign interests, it need not meet the same factual injury threshold.

    A. Proprietary Standing

    Ordinarily, for an individual to have standing, he must establish that he has suffered an "injury in fact." (20) That injury must be "concrete" and "particularized," and it must involve the "invasion of a legally protected interest." (21) Moreover, the injury must be traceable to the defendant and it must be of the sort that the courts can redress through a favorable decision. (22) According to the Court, requiring individuals to demonstrate injuries in fact ensures that courts stay within their traditional role of remedying individual rights.

    To protect the separation of powers, however, the Court has limited the types of injuries that can support standing. It has concluded that individuals lack standing to bring suit alleging only that the government failed to comply with the law. (23) According to the Court, the injury from disobedience is a "generalized grievance" that is "undifferentiated and 'common to all members of the public.'" (24) Redressing that injury thus is not "the business of the courts" but is instead a task for "the political branches." (25) To have standing to proceed to court, the individual must establish that he suffered a factual injury because of the failure to obey the law.

    This same standing scheme applies to the states. Like individuals, states can enter into contracts and own property. (26) And states can bring suit to vindicate these proprietary interests. (27) Moreover, just like an individual, to establish standing to assert these interests, the state must demonstrate that it has suffered a distinct, concrete injury in fact by this wrongdoing. (28) The same restrictions on what injuries will support standing also apply. States cannot invoke their proprietary interests to sue the United States solely on the ground that the United States has failed to comply with the law. Only if the violation...

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