Document Type

Article

Publication Date

2024

Abstract

An important question is under what circumstances should states have standing to sue the federal government. Should states have greater standing rights than private parties to protect states’ unique interests, or should all parties in federal courts have the same standing rights? In its 2007 decision Massachusetts v. EPA, the Supreme Court in a divided five-to-four decision stated that states are entitled to “special solicitude” for Article III standing in suits in federal courts, but a dissenting opinion argued that states ought to have the same standing rights as other parties in federal court. While Massachusetts initially appeared to be a momentous standing decision, the Supreme Court never actually applied the special-solicitude standard because the Court’s Justices were divided regarding that standard. In its 2023 decision in United States v. Texas, the Supreme Court in a decision with multiple opinions raised questions about the continuing viability of the relaxed state standing decision in Massachusetts, although there was no definitive answer. However, in its 2023 decision in Biden v. Nebraska, the six-Justice majority opinion written by Chief Justice Roberts applied an arguably lenient approach to state standing without ever citing the Massachusetts decision. After the United States v. Texas and Biden v. Nebraska decisions, state standing may continue, but without the framework of the Massachusetts decision to guide when states have standing. For standing scholars, the move away from a theory of state standing in Massachusetts, however flawed, to a more ad hoc application of what is a state instrumentality in the Biden decision leads to the question raised in Chief Justice Roberts’ dissenting opinion in the Massachusetts decision and Justice Kagan’s dissenting opinion in Biden of whether standing doctrine is more a “lawyer’s game” to address or not address certain substantive issues rather than a principled constitutional doctrine. This Article proposes that the Supreme Court develop guidelines for state standing allowing states to sue if the federal government violates a federal statute that causes significant injury—not trivial injury—to the plaintiff-state, although there may be possible exceptions if a suit would undermine fundamental constitutional doctrines such as separation of powers.

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