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. 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.
Bradford Mank & Michael E. Solimine,
State Standing and National Injunctions,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss5/4