The New Public Standing.

AuthorDavis, Seth

Table of Contents Introduction I. The Problem of the New Public Standing A. The Existing Debate B. The New Problem: States' Financial Injuries as the Basis for Public Actions 1. Financial injuries to a state's proprietary interests a. The Emoluments Clauses litigation b. The travel ban cases 2. Financial injuries to a state's sovereign interests a. Lost revenue for regulatory programs and government services b. Increase in the costs of providing government services c. General harm to a state's economy II. The Story of the New Public Standing A. The Changing Nature of Legal Mobilization B. The Confluence of Partisan Federalism and Executive Power C. Ideological and Intellectual Shifts Within the Article III Judiciary III. The Prospects of the New Public Standing A. The Possibility of Special Disfavor B. The Possibility of Special Solicitude IV. The Normative Dimensions of the New Public Standing A. Arguments for Special Disfavor 1. Conceptual and doctrinal arguments a. The form of the loss b. The form of the underlying rights and remedies c. The substance of the underlying claims and interests 2. Functional arguments a. Judicial competence b. Federalism 3. Private enforcement B. The Arguments for Special Solicitude 1. Doctrine 2. Political accountability of state officials 3. Holding the federal executive branch accountable V. A Framework for the New Public Standing A. Constitutional Standing 1. Private standing to sue based upon financial injuries 2. A state's proprietary losses 3. A state's sovereign losses B. Prudential Standing 1. Third-party standing 2. Parens patriae standing C. The Link Between the New Public Standing and the Nationwide Injunction Conclusion Introduction

In 1968, Louis Jaffe celebrated that the federal courts had begun to grant citizens and taxpayers Article III standing to challenge government action on behalf of the public. (1) Later that year, the U.S. Supreme Court proved Jaffe prophetic, opening the door to taxpayer standing in Flast v. Cohen. (2) Individual litigants thus emerged as representatives of the public interest in federal court. (3) How times have changed. The moment of the individual standing upon her "conscience" (4) in federal court proved fleeting. By the mid-1970s, an increasingly conservative Supreme Court began to cut back on the standing of private litigants to vindicate public interests, or what this Article calls "private standing for the public." (5) And in 2007, the Court in Hein v. Freedom from Religion Foundation, Inc. all but buried Flast by treating it as a narrow exception to a general rule against individual taxpayer standing. (6)

Today's new public litigants are not private citizens or individual taxpayers seeking to stand for the public. In 2007, the Court also decided Massachusetts v. EPA, (7) which, in retrospect, all but announced state governments as the new public interest litigants. In affording the Commonwealth of Massachusetts "special solicitude in [the] standing analysis," it was not clear whether the Court was focused upon the State's financial injury as an owner of real property, its status as a sovereign government, or its capacity to represent its citizens. (8) But it has quickly become clear that states are significant public interest litigants in federal court.

In recent years, states have brought a spate of public interest suits against the federal government based upon financial injuries. (9) State standing to sue the federal government for financial injuries is "the new public standing." Fifteen states (plus the District of Columbia) relied upon financial harms to establish standing to defend provisions of the Affordable Care Act on appeal after President Trump threatened to allow the Act's health care exchanges to "explode." (10) Several states claimed economic injuries to their public universities to establish standing to challenge the Trump Administration's Muslim travel ban. (11) Maryland and the District of Columbia, both of which own hotels that compete with Trump properties, sued the President under the Emoluments Clauses based in part upon "proprietary" and other financial harms.12 Texas, along with a host of other states, successfully sued the Obama Administration over its immigration enforcement policies, claiming they would cause the State financial harm. (13) Texas relied upon financial harm when it challenged the Department of Labor's overtime rule (14) and the Obama Administration's guidance on the rights of transgender students. (15) These are just a few examples of the new public standing. (16)

The state attorneys general who bring these public actions are ideological litigants. They do not claim a personal right of their own, but instead premise their standing to bring politically controversial and ideologically charged public actions upon financial injuries to the states they represent. The new public standing is a valuable resource for state attorneys general and ideological interest groups interested in collaborating on impact litigation. (17) A financial injury is the "paradigmatic" injury in fact, one that supports Article III standing for private parties as a matter of course.18 States often point to this paradigmatic injury in fact while enjoying flexibility, particularly when multiple states sue together, to search for a favorable forum in which to file suit. In some cases, the state plaintiff suffering a financial injury may be the only party with Article III standing. (19) Thus, the new public standing channels legal mobilization and cause lawyering toward the offices of the fifty state attorneys general. At the same time, these state lawsuits disperse authority over agenda control down the federal judicial hierarchy. By hearing these suits on the merits and issuing preliminary relief--sometimes with nationwide scope--federal district judges can powerfully shape the national discourse surrounding public law disputes.

Whether the new public standing's empowerment of state officials and lower court judges is normatively desirable is a matter that is difficult to assess in the abstract. It is a question on which we can expect changes of position and corresponding charges of hypocrisy and motivated reasoning. (20)

This Article's goal is to offer a comprehensive account of the new public standing. It argues that we should not hope--or expect--that the federal courts will treat the new public standing as they have treated private standing for the public: by denying standing on the ground that states are ideological plaintiffs. (21) Nor, however, should we hope or expect that the federal courts will treat the new public standing as they have treated private standing based upon financial injuries.

One aspect of this thesis is doctrinal and normative. The new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries. Under Article III standing rules for private parties, financial injuries "always" satisfy the injury-in-fact requirement, but an ideological interest in vindicating the public interest does not. (22) Doctrinally, some financial injuries to states mirror those to private parties, but others do not. Normatively, state attorneys general who sue based upon financial injuries to their states may raise the same concerns that the Supreme Court has cited in cutting back on private standing for the public. The new public standing therefore requires us to rethink the terms of doctrinal and normative debates about standing to sue the federal government.

Another aspect of this thesis is descriptive and positive. This Article describes the ideological, institutional, and political factors that help explain the emergence of the new public standing. (23) In light of these factors, this Article concludes that the new public standing will prove more durable than citizen and taxpayer standing. Something valuable was lost, however, when standing doctrine swerved from the path prophesied by Jaffe, and the new public standing will not replace it.

The argument unfolds in five Parts. Part I clarifies the doctrinal problem that the new public standing presents. The commentary on state standing has focused upon cases in which states sue based upon harms that do not fit within the paradigmatic injuries of private standing doctrine. In these cases, the question is whether federal courts should afford states "special solicitude in [the] standing analysis." (24) The new public standing requires us to rethink the terms of the debate because it seems to present a paradigmatic "private" harm: a financial injury. Scholars have only begun to map the complexities of the new public standing, (25) and this Article builds upon and challenges the existing maps. The question is whether special disfavor (or special solicitude, or neither) is warranted when states sue the federal government based upon financial injuries. And that question is more doctrinally and normatively complex than it seems at first glance because states may suffer financial injuries in both typically private and uniquely public capacities.

Part II describes the ideological, institutional, and political context of the new public standing. What makes the new public standing "new" is not simply state governments' reliance upon financial injuries to bring public actions. Instead, this Article argues, the story of the new public standing forces us to look anew at several socio-legal factors that bear upon access to federal court-including legal mobilization, federalism and federal executive power, and intellectual and ideological trends within the federal judiciary.

The new public standing empowers two types of "local" actors to act together as national lawmakers: state executive officials and federal district court judges. State government litigants may aim to satisfy the injury-in-fact requirement by pointing to...

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