REINING IN STATE STANDING.

• Author: Woolhandler, Ann
• Position: Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing

INTRODUCTION

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.

1. CATEGORIES OF STATE STANDING

   State standing tends to fall into the following categories. (8) While scholars sometimes vary their terminology, the categories below roughly correspond to the terminology in state complaints, and in judicial decisions evaluating state standing.

   1. Enforcement interests. (9) State enforcement interests are implicated when a state brings an action to enforce state legislation in its own courts against private parties. For example, a state prosecution for murder in a state court vindicates state enforcement interests. A civil action that a state official brings to enforce state legislation also vindicates enforcement interests.

   2. Sovereignty interests. State sovereignty interests are implicated when the government sues to vindicate its power to govern with respect to a particular subject matter or in a particular territory. (10) When Massachusetts sued a federal official alleging that federal spending on maternal health exceeded congressional powers, it sought to vindicate its claim that only states had the authority to spend or regulate as to that subject. (11)

   3. Quasi-sovereign or parens patriae interests. These interests are those attributable to citizens of a state, such as interests in the environment. When a state sues an alleged polluter because of harms to the health of its citizens, it is vindicating a parens patriae interest. (12)

   4. Proprietary or individual interests. Individual interests are state interests comparable to the interests that allow a private party to bring suit. For example, if a state sues to collect on certain bonds that it owns, it is suing to vindicate a proprietary or individual interest. (13)

2. TRADITIONAL LIMITS ON STATE STANDING

   The states' pursuit of their enforcement interests in their own courts, with the possibility of Supreme Court review, presents the paradigm of the state as litigant. The Constitution, of course, provided for original Supreme Court jurisdiction over controversies in which a state was a party, (14) thus contemplating that a state might appear as a plaintiff in original civil actions in a federal court. At the same time, the Constitution's placing original state-as-party jurisdiction in the Supreme Court suggested that states would not be plaintiffs in the federal courts very often. And indeed, the Supreme Court restricted state-as-party suits.

   First, the Court indicated that, as a general matter, state sovereignty interests did not give states claims for relief. (15) For example, when Georgia sued federal government officials in Georgia v. Stanton to challenge the constitutionality of Reconstruction, the Court stated that such claims involved non-litigable "rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State." (16) Border disputes between states, however, were an early exception; the Framers apparently had contemplated that such suits would be handled by the Supreme Court, and they resembled common-law claims for property between individuals. (17)

   When the state and federal governments did have disputes about whether one government was trenching on the governing powers of the other, such disputes would typically be litigated by either government enforcing its own laws in its own courts against individuals who had violated them. (18) For example, when Georgia claimed that it could regulate in the Indian territory contained within Georgia borders, it passed and enforced a license law against persons working in such territory without a state license. (19) The defendant in an enforcement action raised the unconstitutionality of the state laws as a defense, and on direct review the Court held in Worcester v. Georgia that the federal government had exclusive authority to regulate commerce with the Indian tribes; it therefore reversed the judgment of conviction. (20) Similarly, the federal government's efforts to use military courts rather than state courts during Reconstruction could be contested on federal habeas corpus by individuals challenging their detention resulting from proceedings in a military court. And in Ex parte Milligan, the Supreme Court held that a military tribunal lacked jurisdiction in states where the regular courts were open. (21)

   The fact that structural disputes between states and the federal government were litigated in cases between government and private parties indicated that a case or controversy under Article III involved certain legal relations that did not generally include conflicting claims of power between governments as adversary parties. Rather, the claims typically took the form of governmental power (through enforcement) versus individual immunity (from the power). The form of such judicial actions reinforced the notion that individuals are the ultimate beneficiaries of even structural constitutional limitations, (22) and that the federal courts' role was to protect private rights, not directly to resolve political disputes between contending sovereigns. (23) Indeed, the legitimacy of the federal courts' decisions restricting political actors is premised on their obligation to apply the law in cases involving private rights. (24)

   Similarly, the nineteenth century does not offer examples of federal jurisdiction over suits by states claiming to represent their citizens as parens patriae against the federal government. (25) On a few occasions, states brought public nuisance suits against private parties in the Supreme Court. For example, in Pennsylvania v. Wheeling & Belmont Bridge Co., the Commonwealth sought to enjoin a privately built bridge's obstruction to navigation. (26) The Court, however, required the Commonwealth to show a particularized injury, just as the common law would have required of a private party who wished to bring a public nuisance suit. (27) This result underscores that common-law injuries, such as might be at issue when a state sued on a contract claim, were meant to be the grist of the Supreme Court's original jurisdiction. (28) Rather than receiving special treatment as plaintiffs in federal courts, states were only given access to federal courts as plaintiffs in fairly limited circumstances, i.e., when their claims looked like the common-law actions of private parties. Had it been otherwise--such that states could freely litigate their sovereignty interests and the interests of their people against the federal government--many notable cases raising constitutional issues would have looked quite different. (29)

3. THE MODERN COURT

   The twentieth century saw the weakening of limitations on state standing. Some restrictions nevertheless persisted, particularly in litigation against the federal government respecting the constitutionality of federal law. A state's interest in governing in an area to the exclusion of the federal government--that is, its sovereignty interests--continues to be a doubtful basis for standing to challenge federal legislation. (30) For example, in Massachusetts v. Mellon the Court disallowed a state challenge to congressional spending on maternal health as beyond federal power. (31) More recently, the Fourth Circuit disallowed Virginia's suit to challenge the...