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


Two controversies currently roiling the federal courts and federal courts scholarship are whether and to what extent states have standing as plaintiffs in federal court, and when, if ever, federal courts can issue national or nationwide injunctions (1) against the federal government, even when only one or a small number of states or other parties have brought suit. While federal courts have long permitted states to bring suit by virtue of their status as sovereigns, states have more aggressively brought such suits in the wake of the Supreme Court's decision in Massachusetts v. EPA, (2) which relaxed the standing requirements for states. Similarly, while for several decades some federal courts have issued injunctions binding the entire nation--beyond the scope of their particular geographic jurisdictions--it is only in the last few years that such injunctions have become a trend. Courts, commentators, and Congress are now weighing in on that trend. (3)

Both issues can arise in the same litigation, such as in Texas v. United States, where the Fifth Circuit struck down the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program granting lawful immigration status to potentially millions of undocumented immigrants. (4) The court there held that at least one of the twenty-six plaintiff States had standing, and that a nationwide injunction against enforcement of DAPA was appropriate. (5) But the convergence of the issues was almost coincidental, as the court did not discuss both the propriety of state standing and of a national injunction in any systematic way. Much the same can be said about the scholarly literature on these topics. Thus, most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. (6)

This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, courts should permit states to have standing under somewhat relaxed criteria as compared to what private plaintiffs must show. Part II turns to national injunctions; discusses the recent increases in the issuance of those decrees; and explores the controversy over when, if ever, federal courts possess powers under equity or standing criteria to bind the entire nation.

Part III addresses both topics in a coordinated manner. It acknowledges the benefit of states suing to protect federalism interests against the incursions of the federal government, but also addresses the pathologies of one or more states bringing suit, particularly in the partisanship demonstrated by states led by attorneys general or governors of states from the same political party suing to stop the actions of a presidential administration of a different party. While states in some circumstances have standing to sue, it does not automatically follow that even when successful the entire nation should be subject to an injunction. Rather, we propose an alternative to the dichotomy that courts always (or almost always) or, conversely, never have authority to issue such injunctions. We support the possibility of nationwide injunctions, but before issuing such decrees, courts should take into account factors such as the number and geographic and partisan diversity of the states, who (attorney general or governor) is representing a state, and which one or more states are opposing the decrees, as parties or amici curiae. These criteria would better inform and integrate judicial consideration of state standing and national injunctions when they arise in the same case. Finally, Part III critically examines various possible statutory solutions to the problems of national injunctions, including vesting exclusive jurisdiction of suits seeking that relief in the District of Columbia, or requiring that they be heard by a three-judge district court.


    States have long been permitted to sue in federal court in various capacities, such as in their own proprietary capacity, little different from that of private parties. (7) But it is fair to say that "[t]he most difficult standing cases" are those where a state sues in its parens patriae capacity, relying on its quasi-sovereign interests of representing its citizens generally. (8) Most relevant to this Essay, the difficulties are particularly present in cases where states sue the federal government. Those cases "seem to depend in part upon the kind of claim that the state advances, but they are hard to reconcile." (9)

    For our purposes, the most pertinent decision is Massachusetts v. EPA, (10) where the Supreme Court in 2007 declared that states are entitled to "special solicitude" for standing in Article III federal courts. (11) Additionally, the Court stated that, in at least some circumstances, states enjoy greater Article III standing rights than private individuals. (12) Justice Stevens in his majority opinion wrote: "We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan [ v. Defenders of Wildlife], a private individual." (13)

    But the Massachusetts decision failed to articulate a clear rationale for why states are entitled to greater Article III standing rights than private individuals. The Court confusingly relied upon both Massachusetts's procedural rights under the Clean Air Act and its quasi-sovereign interests. (14) In his dissenting opinion, Chief Justice Roberts correctly pointed out that in the Clean Air Act "Congress treated public and private litigants exactly the same." (15) Accordingly, the Clean Air Act might possibly provide a basis for state standing, but not for greater state standing rights than private parties. (16)

    In the Massachusetts decision, the only plausible theory for why states might possess greater standing rights than private individuals is because of their quasi-sovereign interests in protecting the health and welfare of their citizens and the states' natural resources. (17) In his dissent, however, Roberts argued that Massachusetts's quasi-sovereign interests in protecting the health and welfare of its citizens and the State's natural resources could not serve as a basis for a suit against the federal government. This is because the Court's 1923 decision in Massachusetts v. Mellon (18) held that states may not ground a suit against the federal government on quasi-sovereign interests, since the federal government rather than the state is in charge of protecting such interests. (19) For the majority, Stevens attempted to distinguish the Mellon decision by arguing that that case merely prevented states from invoking quasi-sovereign interests to block federal regulation of its citizens rather than "allowing a State to assert its rights under federal law," which Massachusetts was doing in relying upon the Clean Air Act to protect its citizens. (20)

    Massachusetts has provoked continuing controversy due to its unclear position on state standing. (21) For example, because the decision's attempt to distinguish the Mellon decision was problematic, Professors F. Andrew Hessick and William Marshall argue that the "special solicitude" for state standing in the Massachusetts decision was not based upon parens patriae standing arising from a state's quasi-sovereign interests in protecting the health and welfare of its citizens and the state's natural resources, but rather from the Commonwealth's interest in protecting its coastal areas from future erosion, even though Roberts's dissenting opinion argued that Massachusetts's injury was too speculative. (22) They are correct in asserting that the Massachusetts decision relied in part upon the alleged injury that Massachusetts was and will be suffering from rising sea levels arguably caused by climate change in finding a standing injury under Article HI of the Constitution. (23) However, Hessick and Marshall fail to acknowledge that the Massachusetts decision asserts multiple grounds for standing that begin with Massachusetts's injury from rising sea levels and build upon that injury to arguably open the door to parens patriae standing. (24)

    In another example, one of us has argued that the Massachusetts decision potentially opened the door to a broad theory of parens patriae standing that would allow states great latitude in suing the federal government, while acknowledging the confusing and sometimes contradictory analysis in that decision. (25) The Massachusetts decision's discussion of the Court's 1907 decision in Georgia v. Tennessee Copper Co. (26) arguably opens the door to very broad parens patriae standing. The Tennessee Copper decision allowed states broad authority to sue at least private parties that cause injuries to a state's quasi-sovereign interests in protecting the health and welfare of its citizens and the state's natural resources, and the Massachusetts decision did not appear troubled about applying the Tennessee Copper decision to a suit against the federal government. (27)

    Likewise, one of us has agreed with the Fifth Circuit's decision in United States v. Texas (28) granting states broad standing rights against the federal government based upon the Massachusetts decision and federalism concerns, but also accepted the Fifth Circuit's concern that there must be some limitations on such standing rights so that states could not sue when the federal government's possible injury to a state or its citizens is comparably small. (29) The Fifth Circuit in the...

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