States increasingly litigate before the federal courts in lawsuits challenging national policy. Texas Attorney General (now Governor) Greg Abbott is famous for describing his typical day as follows: "I go into the office, I sue the federal government and I go home." (1) Although the challenges over the last decade tended to come from the political right--including litigation over national healthcare, immigration, and discrimination policy--high-profile lawsuits have come from the political left as well. The leading Supreme Court decision on state litigation, Massachusetts v. EPA, (2) involved an effort by Massachusetts and eleven other States to force the Bush-era Environmental Protection Agency (EPA) to regulate greenhouse gases under the Clean Air Act. And states have been the lead plaintiffs in recent challenges to President Trump's executive orders restricting entry into the United States for persons from select countries. (3)
State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article Ill's "case or controversy" clause or under various prudential standing doctrines. (4) These arguments have often taken novel forms--such as claims that states' injuries are "self-inflicted" or offset by other benefits of federal policies--that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing rules should govern states. (5) States frequently respond by arguing that their unique status as state governments confers special advantages when it comes to standing. In particular, they have relied upon the parens patriae doctrine, which allows them (sometimes) to sue to redress injuries to their citizens, or simply invoked Massachusetts v. EPA's statement that states are entitled to "special solicitude" in standing analysis. (6)
Undergirding all of this doctrinal conflict is a broader worry that litigation between states and the national government is an inherently political enterprise. My colleague Walter Dellinger, formerly acting Solicitor General during the Clinton administration, argued that recognizing state standing to challenge the Obama administration "would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes." (7) The claim seems to be that because states are themselves public and political actors, litigation by them against the national government is inherently "political" in some way that litigation by ordinary private litigants is not. (8)
My own view is considerably more sympathetic to state standing. The general issue divides naturally into three distinct questions. First, when will states have standing to sue the national government under "ordinary" principles of standing law--that is, without any thumb on the scale, one way or the other, arising from their status as state governments? Part I answers this question by arguing that, even under ordinary standing principles, the responsibilities and prerogatives of state governments give them a broad range of interests that may be invaded or harmed by national action. In particular, the structure of modern cooperative federalism regimes--in which state governments typically work hand in glove with federal officials administering statutes like Medicaid or the Clean Air Act--mean that changes in federal policy will almost always meaningfully affect state interests. And even where federal regulation is not formally cooperative--as in immigration policy--the role of the states in policing and ensuring the well-being of persons within their jurisdictions will often cause federal policy changes to significantly impact states' responsibilities. States are thus likely to enjoy broad standing even under ordinary Article III analysis.
The second question is whether states should have special disadvantages, unique to them, when they seek to establish standing to sue. Part II demonstrates that many standing arguments made against state litigation would not fly--and would never be raised--in litigation brought by private parties. Such arguments can be defended only on the ground that states should be uniquely disabled from challenging federal action. The best case for such disabilities rests on the notion that state litigation is inherently political and, therefore, should be nonjusticiable. But the political question doctrine has generally turned on the nature of the substantive claims being advanced, not the identity of the parties. And in any event, state litigation must be compared to its alternatives, not evaluated in a vacuum. I argue that hot-button political issues will be litigated by private organizations, class actions, and other mechanisms if not by states, and that states may compare favorably to private suits in important respects. The other alternative is to resolve these high-profile disputes outside the courts through political remedies. But recent experience suggests that such remedies--which include government shutdowns, refusals to confirm executive appointments, and even impeachment--are not necessarily preferable to litigation. In our polarized contemporary circumstances, it is time to reexamine our customary aversion to settling political questions in courts of law, as long as those questions are in fact governed by positive law.
The last question points in the opposite direction: Should states have special advantages in establishing standing? Part III suggests that the "special solicitude" recognized in Massachusetts v. EPA is actually narrower than is sometimes supposed. But I do argue that that state-based litigation provides a means of aggregating the interests of large numbers of individual persons and as such should be viewed as a potential alternative to class actions, multidistrict litigation, or broad organizational standing for nongovernmental entities like the Sierra Club. Viewed in this framework, state litigation has much to recommend it. Like any legal mechanism, state litigation can be--and perhaps has been--abused in particular cases. But the institutional and political checks and balances built into state litigation give reason to hope that it can be a positive component of our constitutional structure.
STATE INTERESTS AND INJURIES
Article III's basic requirement for standing is both familiar and superficially simple: litigants must establish a concrete "injury in fact," caused by the challenged action and redressable by the requested relief. (9) The nature of the required injury, however, has proven elusive in practice. It is plainly, at least in part, a function of the underlying right that the plaintiff is asserting. (10) Taxpayers, for example, ordinarily lack standing to challenge federal programs involving expenditure of their tax dollars, but taxpayers may often assert claims under the Establishment Clause. (11) Standing is also partially a function of the identity of the party asserting that right. Third parties, for example, will have standing to assert the rights of others depending on their relationship with those others. (12) Moreover, the interests creating standing may arise from either federal or state law. If government action damages an individual's personal or real property, for example, the relevant property rights will generally be creatures of state law; (13) similarly, state referendum proponents' ability to defend their measure on appeal has depended on the degree to which state law empowers them to litigate state interests. (14) Different parties have different legal interests, the invasion of which can support standing under Article III.
States are large governmental entities with extensive responsibilities. Some of their interests are the same sorts of interests that private parties might assert--injuries to state property or breaches of state contracts, for example. Other interests arise from the states' uniquely governmental responsibilities, but they are not qualitatively different from private interests. An individual prevented by government regulation from doing something he is otherwise entitled to do will generally have standing to challenge that regulation, and a state prevented from exercising its ordinary prerogatives is in no different position--even if those prerogatives are public rather than private duties. The fact that states have broader prerogatives and responsibilities than most entities may give them standing in an unusually broad range of cases, but so does the fact that states own more property and enter into more contracts than most entities.
To say that state governments are likely to have broad standing based on their broad set of interests is not to propose any sort of "special" standing rule for state litigants. There may be reasons to recognize special standing rules for states in certain circumstances, as I discuss in Part III. But in many, if not most, cases the states' broad access to federal court is simply the result of applying standard standing doctrine to these litigants. As Professors Ann Woolhandler and Michael Collins acknowledge, "[t]he problem is not that states lack real injuries.... The problem [for opponents of state standing] is that states can easily satisfy the current standing tests." (15)
Common Interests of States
States have many of the same interests that private parties do, and in many cases state litigation will look a great deal like private lawsuits. (16) States own property, for example, and they enter into contracts. In its leading Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel. Barez decision, (17) the Supreme Court classified these interests as "proprietary" in nature, noting that "[a]s a proprietor, it is likely to have...