State Standing for Equality

Author:Seth Davis
Position:Professor of Law, University of California, Berkeley School of Law. Email: sethdavis@berkeley.edu.
Pages:147-188
 
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State Standing for Equality
Seth Davis*
TABLE OF CONTENTS
Introduction .................................................................................. 147!
I. Snapp and Equality Law .............................................................. 152!
A.!Snapp as a Standing Law Case .............................................. 153!
1. Judicially Cognizable State Interests ............................... 154!
a. Proprietary Interests .................................................. 154!
b. Sovereign Interests.................................................... 154!
c. Quasi-Sovereign Interests ......................................... 155!
2. A State’s Interest in Combatting Discrimination ............ 156!
B. Snapp as an Equality Law Case ............................................. 159!
II. State Standing for Equality Today ............................................... 167!
A. State Standing for Equality on the Same Terms
as Private Standing ................................................................ 168!
1. First-Party Standing ........................................................ 168!
2. Third-Party Standing ....................................................... 171!
B. Sovereign Standing to Enforce Equality Law ........................ 174!
C. Quasi-Sovereign Standing for Equality ................................. 176!
III. The Future of State Standing for Equality .................................... 178!
A. Doctrinal Headwinds ............................................................. 179!
1. The Shift from Antisubordination to
Anticlassification ............................................................. 180!
2.!The Unsettled Law of Quasi-Sovereign
Standing........................................................................... 183!
B.!The Importance of Framing ................................................... 185!
Conclusion .................................................................................... 188!
INTRODUCTION
The United States Supreme Court’s ruling in Alfred L. Snapp & Son,
Inc. v. Puerto Rico ex rel . Barez is not generally considered an equality
* Pro fessor of Law, University of California, Berkeley School of Law. E-
mail: sethdavis@berkeley.edu.
148 LOUISIANA LAW REVIEW [Vol. 79
law decision.1 Rather, Snapp is known as a seminal case on state standing
to sue in federal court, one cited in support of state standing in litigation
about climate change,2 federal immigration policy,3 and government
ethics,4 to name a few high profile examples. At its heart, however, Snapp
is a case about equality. The Commonwealth of Puerto Rico sued Virginia
apple growers, alleging that they had violated two federal laws by
discriminating against Puerto Rican workers.5 T he Court reasoned that a
state has a judicially cognizable interest “in securing residents from the
harmful effects of discrimination,” and treated the Commonwealth like a
state, holding that it had parens patriae standing to sue to protect its
residents.6
State standing for equality complicates two typical stories about the
relationship between constitutional structure and individual rights. The
first is about equality law. In a typical telling, state sovereignty is a barrier
to achieving equal protection.7 The structure of federalism is opposed to
the realization of civil ri ghts. This tale is well-founded.8 Slavery and Jim
Crow segregation may be the most familiar examples,9 but they are not the
only, or the most recent, examples of opposition between state sovereignty
and equality law.10 Even so, state standing for equality suggests that the
1. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592
(1982).
2. Massachusetts v. EPA, 549 U.S. 497 (2007).
3. Texas v. United States, 809 F.3d 134, 153 n. 36 (5th Cir. 2015), aff’d by
an equally divided Court, United States v. Texas, 136 S. Ct. 2271 (2016).
4. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 737 (D. Md. 2018).
5. Snapp, 458 U.S. at 59798.
6. Id. at 609.
7. See, e.g., Heather K. Gerken, Federalism 3.0, 105 CALIF. L. REV. 1695,
1708 (2017) (“Unsurprisingly given the treat ment of civil rights protestors,
religious minorities, and other dissenters in the Deep South, racism isn’t the only
‘ism’ linked to federalism and localism.”); Ernest A. Young, Welcome to the Dark
Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69
BROOK. L. REV. 1277, 1 277 (2004) (discussing concern that “the story of state-
based racial oppression reve als a fundamental truth about the dynamics of
federalism”).
8. See Gerken, supra note 7; Young, supra note 7.
9. See Young, supra note 7, at 1277.
10. A more recent example is the Supreme Court’s holding that Section 4 of
the Voting Rights Act, which provided a formula to determine which jurisdictions
had to preclear changes to their voting laws with the federal government, violated
the “equal sovereignty” of the states. See Shelby Cty. v. Holder, 570 U.S. 5 29
(2013); Seth Davis, Equal Sovereignty as a Right Against a Remedy , 76 LA. L.
REV. 83 (2015).
2018] STATE STANDING FOR EQUALITY 149
story of states standing for discrimination is incomplete. Before Snapp,
some states sought to stand for equality in the lower courts.11 And since
Snapp, states have continued to secure their residents from discrimination
by suing in federal court.12 These cases are also part of the story of equality
law.
The second incomplete story is about standing law. In this story,
questions about st anding are questions about Article III and the separation
of powers.13 Questions about state standing law also implicate federalism.14
Questions about state standing, in ot her words, are questions about
constitutional structure, not questions about individual rights. But this is not
the whole story.15 As Snapp and its progeny reveal, questions about state
standing may also be questions about individual rights and the values they
represent. The Snapp Court justified its recognition of a state’s “substantial
interest” in standing for equality by reference to theevils” of discrimination
based upon ethnicity, not by discussing Article III, the separation of powers,
or federalism.16 This history, too, is a part of the story of state standing and
Snapp’s prominent place within it.
This Article reads Snapp as an equality law case in order to take stock
of state standing for equality.17 Its principal argument is that state standing
11. See, e.g., Pennsylvania v. Porter, 659 F.2d 306, 317 ( 3d Cir. 1981)
(collecting cases and explaining that “[c]ourts in this circuit have long recognized
that [a state] may bring a parens patriae action in the United States district courts
to enforce the fourteenth amendment”).
12. See, e.g., Massachusetts v. Bull HN Inf. Sys., Inc., 16 F. Supp . 2d 90, 97
(D. Mass. 1998) (“It seems indisputable that a state has a quasi-sovereign interest
in preventing racial discrimination of its citizens. . . . Similarly, courts have found
a quasi-sovereign interest in preventing discrimination against other protected or
disadvantaged groups . . . .”) (citing People v. 11 Cornwell Co., 695 F.2d 34, 39
(2d Cir. 1982); People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 812
(N.D.N.Y. 1996); Support Ministries for Persons with AIDS, Inc. v. Waterford,
799 F. Supp. 272, 277 (N.D.N.Y. 1992)).
13. See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984).
14. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 51622 (20 07).
15. Scholars are increasingly recognizing that more than the familiar
structural principles are at stake in government standing cases. See, e.g., Tara
Leigh Grove, When Can a State Sue the United States? , 101 CORNELL L. REV.
851, 858 (2016); Seth Davis, Standing Doctrine’s State Action Problem, 91
NOTRE DAME L. REV. 585, 589 (2015).
16. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,
609 (1982).
17. This Article does not discuss a state’s standing to vindicate its “equal
sovereignty” under the Constitution. See Shelby Cty. v. Holder, 570 U.S. 529
(2013); Davis, supra note 10, at 83. In light of the recent proliferation of state

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