When should states have standing? In recent years, there has been an explosion in literature on that question. (1) Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have "special" standing when they sue the federal government--that is, greater access to federal court than private parties? Second, and conversely, should states have at least "equal" access to federal court, or should they face more barriers than private parties? These questions are at the heart of the literature on state standing, including the excellent contributions to this Symposium.
PUZZLE ONE: SPECIAL STANDING?
In Massachusetts v. EPA, the Supreme Court held that the State had standing to challenge the Environmental Protection Agency's failure to regulate greenhouse gas emissions. (2) In so doing, the Court declared that the State was "entitled to special solicitude in our standing analysis." (3) Since that 2007 decision, scholars have debated precisely what the Court meant by that "special solicitude" statement (and even whether the State's "special" status mattered to the holding in that case). (4) But, whatever the proper interpretation, the case spurred an explosion in commentary and, it seems, litigation. (5)
Much of the commentary has focused on the extent to which a state has a "special" power to sue the federal executive branch. As many scholars have observed, in upholding state standing in Massachusetts, the Court suggested that "states should be accorded special access to federal court in order to challenge federal agency action" and inaction. (6) In other words, states may bring suit to contest the federal executive's handling of federal law, even when other litigants cannot.
States themselves seem to be taking full advantage of that opportunity. State suits against the federal executive have risen dramatically in recent years, particularly during the Obama and Trump administrations. (7) These "State v. United States" cases have alleged that the federal executive flouted the will of Congress in various areas, including the environment, (8) immigration, (9) and health insurance. (10)
In his contribution to this Symposium, Ernest Young applauds this trend in intergovernmental litigation, contending that states should have considerable leeway to challenge federal executive action and inaction. (11) Andrew Hessick, for his part, argues that the bar on parens patrie cases should be lifted; states should be able to sue on behalf of their citizens to contest federal conduct that violates constitutional or statutory commands. (12) Bradford Mank and Michael Solimine agree that courts should apply "somewhat relaxed criteria," when states bring suit against the federal executive. (13) This work supplements a string of recent scholarship, which has likewise advocated special state standing to challenge the manner in which the federal executive implements federal law. (14)
Mank and Solimine, along with Jonathan Nash, ask whether this reasoning should extend to the area of remedy, recognizing that many of the debates over state standing intersect with the ongoing debates over national injunctions against the federal executive. (15) In careful and thoughtful essays, these commentators do not advocate any hard-and-fast rules. But they suggest that, under certain (limited) circumstances, courts should be more willing to grant nationwide relief when the lawsuit is brought by a state (or multiple states). (16)
One might wonder why states warrant "special solicitude"--that is, access to court over and above that of private parties--at either the standing or the remedial stage. Scholars continue to debate this issue, but there are some common themes. State attorneys general (who represent the state in the bulk of cases) are politically accountable officials who seem likely to bring actions in the public interest. (17) Moreover, there are a limited number of state attorneys general (fifty), so broad state standing will not flood the federal courts with cases. Under this view, "[s]tate attorneys general have limited resources and are politically constrained" and thus will likely target "[o]nly particularly egregious executive violations of public rights." (18)
As I have suggested in prior work, (19) there are reasons to doubt these assumptions. State officials may not be better positioned than private parties to police the federal executive's handling of federal law. First, a state attorney general has an obligation to represent the interests of her state, not the national public interest. (20) Second, in an era of growing party polarization, (21) state attorneys general may be motivated by partisanship, rather than a broad conception of the public interest. (22) Indeed, many recent "State v. United States" lawsuits could be seen as efforts by state officials to go after their political opponents on a national stage. (23) Republican attorneys general--led by Texas--attacked Obama-era policies, such as the deferred action programs for undocumented immigrants. (24) With President Trump in the White House, the litigation incentives have flipped; now Democratic attorneys general--led by New York and California--challenge the Trump administration's policies on immigration, the environment, and health insurance. (25)
Some supporters of broad state standing are sensitive to the issues of party polarization. They suggest that courts ought to take such concerns into account. Courts could, for example, grant standing and nationwide relief only when the state lawsuit has bipartisan support. (26) At first glance, this approach has considerable appeal. But I do want to offer a cautionary note: it is not clear that federal courts are institutionally suited (much less willing) to examine the ideological background of the litigants before them.
In past work, I proposed a more limited scope for special state standing against the federal government. My argument built on the fact that states have long had the power to go to court when private parties could not: states may enforce and defend state law, absent any showing of concrete injury. (27) I showed that, historically, states could assert that same interest in suits against the United States; that is, states could challenge federal statutes or agency regulations that preempted state law. (28) Drawing on this history and precedent, I offered a limiting principle for special state standing: states have broad standing to sue the federal government to protect state law (as in preemption cases), but not to oversee the federal executive's implementation of federal law. (29) Such a principle, I argued, would more carefully map onto the political incentives of state attorneys general; after all, they are selected to further the interests of the residents of their respective states, not to protect the national interest. (30) In his thoughtful contribution to this Symposium, Robert Mikos challenges this (more...