Document Type


Publication Date



State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing rules should govern states. States frequently respond by arguing that their unique status as state governments confers special advantages when it comes to standing. In particular, they have relied upon the parens patriae doctrine, which allows them (sometimes) to sue to redress injuries to their citizens, or simply invoked Massachusetts v. EPA’s statement that states are entitled to “special solicitude” in standing analysis.

The general issue divides naturally into three distinct questions. First, when will states have standing to sue the national government under “ordinary” principles of standing law—that is, without any thumb on the scale, one way or the other, arising from their status as state governments? Part I answers this question by arguing that, even under ordinary standing principles, the responsibilities and prerogatives of state governments give them a broad range of interests that may be invaded or harmed by national action. In particular, the structure of modern cooperative federalism regimes—in which state governments typically work hand in glove with federal officials administering statutes like Medicaid or the Clean Air Act—mean that changes in federal policy will almost always meaningfully affect state interests. And even where federal regulation is not formally cooperative—as in immigration policy—the role of the states in policing and ensuring the well-being of persons within their jurisdictions will often cause federal policy changes to significantly impact states’ responsibilities. States are thus likely to enjoy broad standing even under ordinary Article III analysis.

The second question is whether states should have special disadvantages, unique to them, when they seek to establish standing to sue. Part II demonstrates that many standing arguments made against state litigation would not fly—and would never be raised—in litigation brought by private parties. Such arguments can be defended only on the ground that states should be uniquely disabled from challenging federal action. The best case for such disabilities rests on the notion that state litigation is inherently political and, therefore, should be nonjusticiable. But the political question doctrine has generally turned on the nature of the substantive claims being advanced, not the identity of the parties. And in any event, state litigation must be compared to its alternatives, not evaluated in a vacuum. I argue that hot-button political issues will be litigated by private organizations, class actions, and other mechanisms if not by states, and that states may compare favorably to private suits in important respects. The other alternative is to resolve these high-profile disputes outside the courts through political remedies. But recent experience suggests that such remedies—which include government shutdowns, refusals to confirm executive appointments, and even impeachment—are not necessarily preferable to litigation. In our polarized contemporary circumstances, it is time to reexamine our customary aversion to settling political questions in courts of law, as long as those questions are in fact governed by positive law.

The last question points in the opposite direction: Should states have special advantages in establishing standing? Part III suggests that the “special solicitude” recognized in Massachusetts v. EPA is actually narrower than is sometimes supposed. But I do argue that that state-based litigation provides a means of aggregating the interests of large numbers of individual persons and as such should be viewed as a potential alternative to class actions, multidistrict litigation, or broad organizational standing for nongovernmental entities like the Sierra Club. Viewed in this framework, state litigation has much to recommend it. Like any legal mechanism, state litigation can be—and perhaps has been—abused in particular cases. But the institutional and political checks and balances built into state litigation give reason to hope that it can be a positive component of our constitutional structure.

Library of Congress Subject Headings

Actions and defenses, Federal-state controversies, Federal government, State governments