16. When Can States Sue the Federal Government?
The student loan cases provide another opportunity for the Supreme Court to clarify when (and why) states are proper plaintiffs to challenge federal policies
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Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):
On the Docket
Last week was quite a busy one for the Court, with oral arguments in both of the “Section 230” cases and the second, third, and fourth signed decisions of the Term. Briefly on the latter, the Court on Wednesday handed down a unanimous decision in a complicated (and fairly uncontroversial) bankruptcy case; and two divided rulings: In Helix Energy Solutions Group, Inc. v. Hewitt, a 6-3 majority, in an opinion by Justice Kagan, held that even executives are not exempt from the Fair Labor Standards Act’s maximum hour and overtime rules if they are paid on a “daily rate,” rather than “salary,” basis. Justices Barrett and Thomas joined Kagan and Justices Sotomayor and Jackson in the majority. Justice Gorsuch dissented on procedural grounds; Justice Kavanaugh, joined by Justice Alito, dissented on the merits. (As Slate’s Mark Joseph Stern noted, Justice Kagan’s majority opinion continues a noticeable trend of footnotes that are … sharply critical … of Justice Kavanaugh.)
And in Cruz v. Arizona, Chief Justice Roberts and Justice Kavanaugh joined Justice Sotomayor’s majority opinion (along with Justices Kagan and Jackson) in siding with an Arizona death-row inmate in a technical (but important) dispute over whether the jury that sentenced Cruz to death should have been told that a life sentence would’ve come without the possibility of parole. (In Simmons v. South Carolina, the Supreme Court recognized such a right; the issue in Cruz was whether Cruz’s Simmons claim was barred by an Arizona Supreme Court procedural rule, and the majority held that it wasn’t.) This decision won’t have that big of an impact outside of Arizona capital cases, but it’s still a fairly significant rebuke of the Arizona Supreme Court, which had already been reversed by the Supreme Court once in a prior case refusing to allow a death-row inmate to pursue a Simmons claim. And these days, any time a death-row inmate wins a case in the Supreme Court, well, it’s news.
Turning to this week, given the number of petitions that were relisted for last Friday’s Conference, we expect a potentially big Order List out of the Justices at 9:30 ET. We may also finally see action on the Biden administration’s pending cert. petition in the CFPB case—even though the Solicitor General had urged the Justices to grant certiorari as early as February 17 to allow the case (with expedited briefing) to be argued and decided this Term. It’s quite striking that the Court does not appear to have acquiesced in the federal government’s procedural request (and it would be odd to do so now, 10 days after it first could have if it wanted to). Even a grant, then, may only lead to an argument next Term.
The Justices will take the bench at 10:00 ET for the first of four arguments scheduled for this week. (More on tomorrow’s arguments in the student loan cases in a moment.) And the Court has announced that one or more decisions in argued cases are expected at 10:00 ET tomorrow (Tuesday, February 28). So it should be another busy week at One First Street.
The One First Long Read: State Standing in Flux
In 2013 remarks, then-Texas Attorney General Greg Abbott summarized his job as the chief law enforcement officer of the country’s second-largest state: “I go into the office in the morning, I sue the federal government, and then I go home.” What Abbott was describing was a then-nascent phenomenon that has become far more common over the ensuing 10 years—in which virtually every significant new federal policy (and some old ones) are challenged in federal court by states led by attorneys general from the party opposite to that of the current U.S. President. And the Supreme Court is set to hear another major example tomorrow—when, in Biden v. Nebraska, it considers six red states’ challenge to the Biden administration’s student loan debt relief program.
Part of what has facilitated this trend is politics; as Abbott’s quote underscores, devoting a state’s limited resources to challenging federal policies has become a badge of pride with many state AGs’ party faithful, many (if not most) of whom share their state government’s political (if not legal) objections to the federal programs at issue. But part of what has facilitated the trend is also a subtle but significant softening, at least in the lower courts, of a century-old limit on the standing of states in challenges to federal policies. And Biden v. Nebraska gives the Court its second opportunity of the current Term (alongside the aptly-but-unhelpfully named United States v. Texas, which was argued in late November) to clarify exactly when states can—and can’t—serve as the principal challengers to new federal initiatives.
Let’s start at the beginning. The Supreme Court has long read into Article III of the Constitution the requirement that plaintiffs have “standing.” To demonstrate standing, plaintiffs must show that they suffered an “injury in fact”; that their injury is “fairly traceable” to the defendants’ conduct (“causation”); and that a ruling in their favor would at least partially redress their injuries (“redressability”). The "injury-in-fact” requirement, in turn, requires plaintiffs to demonstrate a (1) concrete; and (2) particularized injury that is (3) either actual or imminent. The Supreme Court has recognized for just as long that states may sue on behalf of their residents when suing other states or private defendants (on the ground that states are “parens patriae”). But in Massachusetts v. Mellon, decided 100 years ago this May, the Supreme Court rejected that theory as applied to challenges to federal policies—because, where federal interests are concerned, it’s the federal government, not the states, that’s “father of the people.” Here’s the key passage of Justice Sutherland’s unanimous ruling:
It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.
Because of Massachusetts v. Mellon (and earlier cases identifying similar principles), states therefore have to satisfy ordinary Article III standing requirements if they wish to challenge federal polices. That means that the policy must injure the state directly, and not just cause incidental harm to the state through its residents. To tee up this distinction, consider the original litigation challenging the Affordable Care Act. The Eleventh Circuit held that Florida had standing to challenge the Act’s Medicaid expansion—which operated directly on the state, requiring Florida to significantly modify its Medicaid program. The Fourth Circuit, in contrast, held that Virginia lacked standing to challenge the individual mandate, because any harm to Virginia residents caused by the mandate was not harm to the state, as such (and the state couldn’t bootstrap such an injury by passing a statute purporting to preempt the ACA). In my view, as I wrote in a 2012 article, both of these rulings got the standing issue exactly right. States should have standing when they suffer unique and direct injuries to their unique interests as states (i.e., injuries that private parties can’t suffer), but not when their only injuries are the indirect effects the challenged program produces in their jurisdiction.
The Supreme Court didn’t revisit the state standing question in the ACA case, and hasn’t revisited it since. (Although the 2018 travel ban ruling is captioned “Trump v. Hawaii,” the actual standing on which the litigation rested was that of the private plaintiffs who sued alongside the Aloha State; Hawaii’s standing was never truly at issue.) Instead, the Court’s most recent detailed discussion of the issue came in Massachusetts v. EPA in 2007. And that decision is … unhelpfully unclear as to why the 5-4 majority held that Massachusetts had standing to challenge the EPA’s failure to promulgate regulations addressing greenhouse gas emissions. Although part of Justice Stevens’s majority opinion alluded to the parens patriae-like idea that states should receive “special solicitude” even when suing the federal government, just as much (if not more) of it harped on the unique injuries Massachusetts would suffer from climate change—given the amount of coastal property owned by the Commonwealth.
Fast forward to Biden v. Nebraska. Although the plaintiffs (and respondents in the Supreme Court) are six states, the Eighth Circuit rested its nationwide injunction of the student loan debt relief program solely on Missouri’s standing (perhaps recognizing the problems with the standing arguments on behalf of the other five states). But as the federal government’s briefing makes clear (see also this amicus brief from Professors Will Baude and Sam Bray), Missouri’s claim to specific injuries is doubly dubious. First, the actual injuries it relies upon are not to Missouri but to the Missouri Higher Education Loan Authority (MOHELA), an entity that has the authority to sue and be sued itself, and so can vindicate its own injuries if and when it wants to. Second, Missouri’s fallback argument—that any financial hit MOHELA suffers from the program will likely be passed onto the state—runs headlong into Justice Alito’s opinion for a 5-4 Court (ten years ago yesterday) in Clapper v. Amnesty International, which stressed that a future injury can only satisfy the “imminence” requirement if it is “certainly impending.”
But if Missouri doesn’t have standing to challenge the student loan debt relief program, the other five states’ arguments fare no better, for they’re all based, to varying degrees, on indirect economic effects on the state treasury that such student loan forgiveness is likely to produce.1 That dovetails with United States v. Texas, where Texas’s claimed injury arising from the federal government’s immigration enforcement priorities is the downstream costs to state infrastructure that would result from the continuing presence of some (unpredictable) number of non-citizens legally subject to removal. That indirect injury, of course, is one that every state suffers—even though it’s long been a staple of the Supreme Court’s standing doctrine that, if everyone has standing, no one has standing.
Indeed, for generations, it’s been the conservative Justices who have led the effort to put real teeth into Article III standing doctrine—in order, it was said, to respect the separation of powers and the appropriate constitutional role of an unelected judiciary. As Justice Alito put it in a 2007 opinion, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Part of why those limits matter is to keep courts out of every single political controversy—to prevent them from acting as a “Council of Revision” on every divisive subject in American life. That’s why standing doctrine requires a plaintiff who has suffered a particularized injury; generalized injuries that everyone suffers can be redressed, as Justice Scalia long argued, through the political process.
And, although this is not necessarily a consensus view, I have long been of the opinion that limiting state standing is especially important in a world in which we have a meaningful Article III standing doctrine. My views in this regard were heavily influenced by a 1966 article by Professor Alex Bickel, who, in response to the Supreme Court’s decision in South Carolina v. Katzenbach explained that:
the nature of the federal union, the power and function of Congress and the President, and the power and function of the judiciary all would be radically altered if states could come into [courts] at will to litigate the constitutional validity of national law applicable within their territories. To allow the states to litigate in this fashion . . . would be a fundamental denial of perhaps the most innovating principle of the Constitution: the principle that the federal government is a sovereign coexisting in the same territory with the states and acting, not through them, like some international organization, but directly upon the citizenry, which is its own as well as theirs.
In addition to the potentially serious sovereignty implications of allowing broad state standing to sue the federal government, Bickel also suggested that “[i]t would make a mockery . . . of the constitutional requirement of case or controversy . . . to countenance automatic litigation—and automatic it would surely become—by states situated no differently than was South Carolina in this instance.” (emphasis mine). Yes, private parties may also move quickly to challenge new federal policies that affect them. But the incentives are different; the resources are less likely to be systematic; and the idea that an individual who is directly affected will typically be the best plaintiff is central to any conception of Article III standing.
One need not look far to see evidence of Bickel’s thesis. Texas alone, for example, has filed 28 lawsuits just in Texas district courts challenging federal policies during President Biden’s first 25 months in office (and even more if you count suits in other jurisdictions). Most of those cases rely upon theories of standing that would allow any state to challenge the same policies—theories that have been embraced by the Fifth Circuit notwithstanding their incompatibility with the Supreme Court’s prior hostility to broad state standing. And numerous blue states were active challengers of Trump policies—even if, as in the travel ban cases, their standing was seldom (if ever) the key. Surely, a world in which the Supreme Court blesses what Texas and other red states are doing to Biden administration policies will quickly become a world in which blue states try the same approach to blocking the next Republican President’s domestic agenda.
Thus, as much as Biden v. Nebraska appears to be a major referendum on a highly contested Biden administration policy, it’s really an even bigger referendum on when (and why) states should be allowed to bring challenges to federal policies in the first place. And if the Supreme Court wants to lower the temperature of contemporary federal civil litigation (and perhaps take some pressure off of its own docket, which, as discussed in a prior issue of “One First,” has been increasingly dominated by early-stage cases like Nebraska), the Justices ought to heed Bickel’s warning—and reiterate that states can only sue the federal government when they suffer a direct, concrete, and particularized injury beyond that suffered by their residents.
SCOTUS Trivia: States Represented on the Court
Keeping with the state theme: Each Justice, when nominated and confirmed to the Court, is appointed from a specific state (or, in the unique case of Justice Ketanji Brown Jackson, a federal territory). That may not be the state in which the Justice was born (see, e.g., Justice O’Connor), or even the state in which they spent most of their pre-judicial career (see, e.g., Chief Justice Burger). But it makes for an interesting list of states that have been well-represented on the Court, and those that … haven’t been.
Counting every single appointment (which will include some folks twice), two states have sent 10 or more Justices to the Court: New York, with 17(!); and Massachusetts, with 10. (New York includes both Charles Evans Hughes and Harlan Fiske Stone twice, so 15 different Justices.)
Meanwhile, there are 19 states (and five current federal territories, to say nothing of defunct ones) from which no Justice has been appointed. And although that may be no surprise for newer states (such as Alaska and Hawaii), the list of 19 includes two of the original 13 colonies (Delaware and Rhode Island), and four other states admitted before the Civil War (Arkansas, Florida, Vermont, and Wisconsin).
Now there’s some trivia…
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And then there are the flaws in the standing arguments advanced by the two private plaintiffs in the second case, Department of Education v. Brown. Specifically, the two plaintiffs claim that their injury stems from not having had a chance to argue through notice-and-comment rulemaking that the program should have had broader eligibility criteria. Leaving aside that, by that logic, anyone who might have been eligible for the program would have standing to challenge it (including those who already paid back their student loans and would like some money back), it also runs headlong into the rather significant redressability problem that the relief the plaintiffs seek (and that Judge Pittman imposed) results in no student loan debt relief for anyone—including the plaintiffs.