Sovereign Ephemera: State Standing Against the Federal Government for Injuries to Quasi-Sovereign Interests
By David A. Nagdeman [PDF]

Within weeks of the 2016 presidential election, Democratic attorneys general from several states signaled their intention to use the federal courts to litigate the deregulatory agenda at the center of the President-elect’s campaign platform. Such brash pronouncements would have been unthinkable a decade ago. If a state attempted to sue a federal agency for the enforcement or nonenforcement of its statutory duties, federal courts would deny subject matter jurisdiction on the grounds that states lacked standing. But in 2007, the Supreme Court issued an opinion in Massachusetts v. EPA that broke new ground for state standing against the federal government, and made the threats of the state attorneys general real. Only two weeks into President Trump’s tenure, attorneys general from the States of Washington and Minnesota successfully moved for a temporary restraining order to enjoin enforcement of a controversial executive order limiting immigration from seven Muslim-majority countries.

The question of state standing against the federal government effectively arose with the growth of public law and the expansion of federal administrative agencies. The prevailing presumption has been against recognizing states’ standing to sue the federal government, either on the basis of federal supremacy or on the basis of the political question doctrine. Yet over the past century, a theory of state standing against the federal government has evolved around the nebulous doctrine of injuries to states’ “quasi-sovereign” interests.

This Comment sorts through three predominant arguments of legal scholars on this issue: a common law theory, a theory based on the doctrine of parens patriae, and a theory of constitutionally derived sovereignty interests. This will lead to a proposed interpretation that maintains legal consistency and precedent while basing the judiciary’s Article III jurisdiction over state suits on sovereignty interests implicit in the Constitution. This Comment will limit justiciable quasi-sovereign interests to a state’s sovereign interest in its territorial and jurisdictional integrity. This interpretation provides a narrow enough reading of Massachusetts to stymie a vast expansion of state recourse to the federal courts to litigate policy differences with the federal administration, yet it still allows states the necessary opportunity to protect their interests in territorial integrity. As a foil upon which to apply this legal theory, this Comment turns to the Court’s most recent encounter with the question, resulting in a split decision over the Fifth Circuit’s holding in Texas v. United States.

David Nagdeman is a J.D. Candidate at Temple University Beasley School of Law, Class of 2019.