Judges have concluded that states do not have standing based on their quasi-sovereign interests to sue the United States for not obeying the law. Two different reasons have been given. First, because a state can assert quasi-sovereign interests only in its capacity of representing its residents, a state has standing to press those interests only if it can demonstrate that its residents have suffered an injury in fact. On this view, states do not have general standing to sue the federal government for disobeying the law; they have standing only if they can show that the disobedience injured a resident. Second, states are not the appropriate bodies to represent as parens patriae the interests of their residents in seeing the United States comply with the law. Instead, the United States itself, which also represents the residents of a state, is the appropriate body to ensure that it complies with federal and constitutional law.
This Essay challenges these conclusions. It does so in two ways. First, it argues that parens patriae is the wrong frame to evaluate state standing to assert quasi-sovereign interests. The states themselves, not their residents, hold quasi-sovereign interests. A state that asserts those interests is not acting in a representative capacity; it is asserting its own interest. Therefore, it is irrelevant to the state’s standing whether the resident has suffered a harm. And it is irrelevant whether the state or the United States is the appropriate body to assert the resident’s interests.
Next, the Essay argues that states should be able to assert this quasi-sovereign interest against the United States for three reasons. First, states have the primary responsibility for enforcing the law and ensuring the safety of society. Second, they act as a check on the federal system. Third, permitting states to pursue those claims aligns with the purposes of extending Article III jurisdiction to suits in which states are a party.
The Essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part V acknowledges that although the Constitution does not prohibit state standing to sue the federal government for disobeying the law, there may be nonconstitutional reasons to limit the states’ ability to sue the federal government. But it argues that for structural reasons, Congress, and not the courts, is the appropriate body to impose those subconstitutional limitations.
F. Andrew Hessick,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss5/3