THE PRIVATE RIGHTS OF PUBLIC GOVERNMENTS.

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

INTRODUCTION

Federal courts law is replete with hallowed dictums that are figuratively resonant but literally false. Among these is Marbury v. Madison's admonition that "[t]he province of the court is, solely, to decide on the rights of individuals." (1) Taken literally, this dictum would close the courthouse doors to government plaintiffs, not to mention any plaintiff who sues to enforce the rights of the public. Perhaps federal courts should take Marbury's dictum for all it literally says, but they do not, not really. Understood figuratively, however, Marbury might be read to enshrine a private rights model into the law of federal jurisdiction. (2)

Contemporary standing doctrine reflects the private rights model. Standing, the Supreme Court has held, is "an essential and unchanging part of the case-or-controversy requirement of Article III." (3) Under the private rights model of standing, private litigants have standing to vindicate their own private rights in an Article III court. But a private litigant who seeks to vindicate a public right stands on unsure footing. (4) That, in rough outline, is the law of private standing today. (5)

How does the private rights model apply to the standing of states to sue in federal court? The answer may seem obvious: distinguish, as the Court did in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, between a state's "proprietary interests" on the one hand and its "sovereign" and "quasi-sovereign" interests on the other. (6) For purposes of standing doctrine, proprietary interests are like private rights. The Snapp Court suggested, while sovereign and quasi-sovereign interests are uniquely public rights. (7) The easy cases are those in which a state sues to vindicate proprietary interests. (8) The hard cases are those that involve a state's sovereign or quasi-sovereign interests, (9) particularly because the Court suggested in Massachusetts v. EPA that such interests may be due "special solicitude in [the] standing analysis." (10) In short, while a state's sovereign or quasi-sovereign interests may not fit within the private rights model of standing, a state's proprietary interests surely do.

This Essay's aim is to think more carefully about the puzzle of a public government's "private" rights. It is not apparent how the private rights model of standing maps onto state standing, particularly in suits against the federal government. Historically, "public rights" encompassed a government's proprietary interests in property held on behalf of the public. (11) And today, state litigation against the federal government has put the distinctions among proprietary, sovereign, and quasi-sovereign interests under strain. States have brought politically controversial suits and requested nationwide injunctions based upon injuries that may look like typically private, judicially cognizable injuries, yet arguably raise the separation of powers concerns that Article III standing doctrine is designed to avoid.

Thus, the distinction between "proprietary" interests on the one hand and "sovereign" or "quasi-sovereign" interests on the other does not neatly track the private rights model of standing. Consider the following cases, which raise hard questions about how to parse a state's proprietary interests in suits against the federal government:

* A state with a substantial egg farming industry sues a federal agency, alleging that it has harmed the state's economy by promulgating new egg-related regulations. (12) The state argues that it has suffered a financial injury, the "paradigmatic" (13) basis for Article III standing. Such "Wallet Injury," (14) the state argues, is a prototypical proprietary interest. Has the state alleged a proprietary interest that suffices for standing purposes?

* The President issues an executive order directing the construction of a border wall. A state with territory along the border sues. (15) It alleges that the wall will negatively impact land the state owns. Does the state's standing depend upon whether a similarly situated landowner would have standing? (16)

* A state that operates a business sues a federal official, alleging that the official has benefitted its competitors at the business's expense. (17) Under Article III, a private corporation may have standing to challenge federal agency action based upon a competitive injury. (18) Does a state have proprietary standing on the same grounds?

* A state sues to challenge a federal agency action that bars non-U.S. nationals from entering the United States to attend university. (19) The state claims standing as a proprietor of the public university where those individuals are enrolled. Under Article III and third-party standing doctrine, schools may have standing to assert the rights of their students when those rights are bound up with the school's interests. (20) Does the state have to satisfy the same test, or is it due special solicitude even when it sues to vindicate a proprietary interest?

* A federal agency threatens to strip all federal funding from a state because the state has adopted a policy that purportedly undermines federal immigration enforcement. (21) The state sues before the agency has carried out the threat. The United States argues that while preenforcement review may be available to protect private rights, the state has no proprietary interest at stake and therefore lacks standing to seek preenforcement review. (22) Is that right?

This Essay charts the analytical and doctrinal confusion arising from the category of "proprietary" interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. (23) It might refer to interests that are analogous to those that a private corporation might litigate, (24) or instead to any type of financial injury a state might suffer. (25) Other possibilities would limit "proprietary" interests to those interests recognized under the common law, (26) or only those interests recognized under private law. (27) Perhaps the most that can be said is that "proprietary" interests should be understood to refer to any interests that are analogous to those of private parties. (28) In addition to this definitional puzzle, there is confusion among courts about how to treat "proprietary" interests in the standing analysis. In many recent cases, states have tried to clear the standing hurdle by combining "proprietary" interests with "sovereign" and "quasi-sovereign" interests. (29) In some cases, moreover, states have argued that they are due "special solicitude" under Massachusetts v. EPA even when they sue to vindicate a proprietary interest. (30)

Together, these analytical and doctrinal questions make up a complex puzzle involving Article III, separation of powers, federalism, and the enforcement of rights. But this puzzle need not and should not be solved in every case.

To bring greater analytical clarity, this Essay proposes a sequence of decisionmaking in state standing cases. Its thesis is that the starting point of analysis of state standing in any particular case should be whether the state has standing under the typical Article III and prudential rules. If a state would have standing under the typical rules applicable to private parties, then the only question is whether there is some reason to show special disfavor to the state. Courts should address questions about special solicitude only in those cases where a state would lack standing under the rules applicable to private parties. This standing analysis should look to the merits of the dispute and the relief the state seeks, and ask whether the state is seeking to enforce its own rights or the rights of a third party and whether the rights it is seeking to enforce are private rights or public rights. (31)

The Essay proceeds in three Parts. Part I parses the interests of states under the modern doctrine. Part II explores the puzzle that these doctrinal distinctions create. Part III lays out an order of battle to help clarify the grounds of debate about state standing in any particular case, (32) and considers the costs and benefits of this order of decisionmaking.

1. PARSING THE INTERESTS OF STATES

   What exactly do we mean when we say that a state has some interests that mirror those of private parties for standing purposes? And how might the answer matter? This Part raises these questions.

   1. Private Standing and Private Rights

      Over the past four decades, the Court has developed a set of constitutional and prudential limits on private standing that are by now familiar. To have Article III standing to sue, a private plaintiff must point to an injury in fact that (i) is concrete and particularized, (ii) was caused by the defendant, and (iii) may be redressed through judicial relief. (33) The purpose of these constitutional standing requirements, the Court has explained, is to protect the separation of powers by limiting judicial authority to resolving cases and controversies. (34) In addition, the Court has developed prudential limits on private standing in an Article III court. Litigants may not, for example, sue to vindicate the rights of third parties unless one of the exceptions to the ban on third-party standing applies. (35)

      Under this private rights model, private parties typically have constitutional and prudential standing to litigate their own private rights. Private rights include rights to bodily integrity, contract, liberty, and property. Common-law causes of action have long been available to protect such rights, though the metes and bounds of these causes have changed over time. American law also recognizes private rights under the Constitution and statutory law. And although Blackstone defined "private rights" as those "belonging to individuals, considered as individuals," (36) we now define them to include rights belonging to private entities, such as private corporations, as well.

      Justice...