STANDING FOR NOTHING.

• Author: Mikos, Robert A.
• Position: Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing

INTRODUCTION 2033 I. STANDING FOR NOTHING 2036 A. When the State Is a Party 2036 1. State as Plaintiff 2036 2. State as Defendant 2041 3. State as Appellant 2042 B. State as Bystander 2043 II. STANDING TO ATTACK FEDERAL LAW 2046 A. Protecting State Law Means Attacking Federal Law 2047 B. Limiting Attacks on Federal Law Is Unworkable 2049 CONCLUSION 2055 INTRODUCTION

Invoking a line of cases showing special solicitude toward the states in meeting Article Ill's jurisdictional requirements, some courts and corrimentators have suggested that states have a special interest in the "power to create and enforce a legal code," (1) threats to which give states standing "to enforce or to protect the continued enforceability of their laws" in federal court. (2) Put another way, the states suffer a concrete and particularized injury for purposes of Article III's standing requirements when the federal government undermines state law, say, by preempting a state statute. Importantly, this injury to the state's sovereign interests is distinct from other types of injury a state may allege to establish standing, including harm to the state's proprietary interests (roughly speaking, its finances) or to its quasi-sovereign interests (the "well-being of its populace"). (3) Thus, standing to protect state law, which this Essay dubs "protective standing," expands state access to the federal courts, especially in litigation with the federal government. (4)

But should states be given special solicitude just to protect their laws in federal court? The normative case for protective standing appears to rest on two central claims. (5) The first claim is that the states need protective standing to fulfil their essential role in our federal system. The argument goes like this: if the states could not invoke federal jurisdiction whenever their laws are threatened, they could not pursue distinct policies, serve as the laboratories of democracy, provide a bulwark against federal tyranny, and so on. Professor Tara Leigh Grove, one of the leading proponents of protective standing, insists that "state governments must have the authority to enforce and to protect the continued enforceability of their laws in court; absent such a power, States could not enforce many laws at all." (6)

While the first claim seeks to establish protective standing's value, the second claim seeks to defray concerns about its costs. The fear is that showing states special solicitude could give them too much access to the federal courts, elevating them into "roving constitutional watchdog[s]," able to litigate any dispute with the federal government, "no matter how generalized or quintessentially political." (7) Even defenders of protective standing acknowledge that there must be some limits imposed on state access to federal court. (8) But proponents of protective standing insist that this particular form of special solicitude is limited--that it opens the doors of the federal courthouses a crack but does not take them off of their hinges entirely. For example, Grove insists that protective standing only gives states the opportunity "to challenge federal statutes and regulations that preempt, or otherwise undermine the continued enforceability of, state law," but does not likewise enable them to challenge "the manner in which the federal executive enforces federal law." (9)

This Essay contests both of these claims, and thus, the normative case for protective state standing. (10) First, the Essay argues that proponents of protective standing have overstated the need for and value of standing to protect state law. It demonstrates that states can adequately enforce and defend their laws without resort to protective standing, either in state court, where federal standing rules do not apply, or in federal court, where other doctrines ensure that states can defend their laws. Canvassing all of the procedural circumstances in which state law might be threatened leads to the same conclusion: protective state standing does not appreciably enhance the states' ability to protect state law. It is, in other words, standing for nothing.

Second, while states may not need protective standing for its intended purpose, they could use it for another purpose: to attack federal law. Often, the only way for a state to "defend" its law is by challenging the federal policy that undermines it. Once we recognize this, it becomes clear that a state's professed desire to "protect" state law could serve as a pretext, i.e., as a way to establish protective standing and thereby air sundry political disagreements with the federal government in federal court. Indeed, such use (or abuse) of protective standing may be more common and more difficult to control than protective standing's defenders have recognized.

In short, protective state standing accomplishes little (or none) of what advocates use to justify it, and it invites the abuse even advocates hope to avoid.

The Essay proceeds as follows. Part I explains in greater detail why states do not necessarily need special standing rules to protect state law. It does so by surveying the universe of procedural circumstances in which state law might be threatened and demonstrating that states could adequately enforce and defend their laws in those circumstances without protective standing. (11) Part II then explains why the special solicitude shown by protective standing rules could give states broad latitude to attack federal law in federal court. It also suggests that defenders of protective standing have not yet devised any effective way to stop states from manufacturing protective standing and thus making every complaint they might have with the federal government a cognizable case to be heard and adjudicated by a federal court.

1. STANDING FOR NOTHING

   This Part demonstrates that the case for protective state standing has been exaggerated. It does so by highlighting the ways states can enforce and defend their laws in different procedural circumstances without resort to protective standing. Section I.A examines circumstances in which the state is a party to litigation; Section I.B then examines circumstances in which the state is a bystander to litigation. The examination demonstrates that states are rarely (if ever) powerless to enforce or defend their laws, even if they are denied protective standing.

   1. When the State Is a Party

      This Section assesses a state's ability to enforce and defend its laws when the state is a named party in litigation. It discusses the state's options as plaintiff (or prosecutor), defendant, and appellant.

      1. State as Plaintiff

         To begin, consider the scenario where the state is the plaintiff (or prosecutor) in litigation--that is, situations in which the state initiates litigation to enforce its laws against another party.

         Although the states plainly need the ability to enforce their laws in a court, that does not have to be a federal court. Indeed, in this context, states have little need for protective state standing. Against the vast majority of defendants, states can enforce their laws in their own courts (i.e., state courts) regardless of whether they would have standing (protective or otherwise) in federal court. (12) After all, state courts are not inherently bound by the same standing rules that limit access to the federal courts. (13) Put another way, in the paradigmatic case involving the enforcement of state law, states have little need to invoke the jurisdiction of the federal courts, and, thus, little need for protective (or any other form of) standing. As the Supreme Court has recognized, states "have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the pre-emption questions such enforcement may raise are tested there." (14)

         In fact, it appears the only time when a state might need to enforce its own laws in federal court--and thus, need to establish standing there--is when a defendant successfully removes the state's enforcement action to federal court. Congress has provided for the removal of a variety of state court cases when certain jurisdictional requirements are met, such as when the suit involves a federal question, diversity of parties, or is an action against a federal official or agency. (15)

         However, the prospect of removal does not actually demonstrate a need for protective state standing. Perhaps most importantly, this is because most defendants cannot remove cases involving state-law causes of action. For example, defendants may not remove a case merely by invoking "a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." (16) Instead, to remove a case on the basis of federal question jurisdiction, defendants must demonstrate that a "substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is 'really' one of federal law." (17) This well-pleaded complaint rule would be difficult to satisfy precisely when protective standing is thought to be most needed--namely, when a defendant challenges a state-law cause of action as preempted.

         In any event, even if a defendant is able to satisfy the well-pleaded complaint rule (or is able to find some other basis for removal), (18) the state still does not need to establish standing to continue the case in federal court. That burden falls upon the defendant, who is the party invoking federal court jurisdiction. As the Seventh Circuit observed in Collier v. SP Plus Corp., the defendant must "establish that all elements of jurisdiction--including [the plaintiff's] Article III standing--existed at the time of removal." (19) Importantly, if the defendant fails to meet this burden--i.e., if the defendant fails to establish that the state would have...