Academic journal article Harvard Law Review

An Abdication Approach to State Standing

Academic journal article Harvard Law Review

An Abdication Approach to State Standing

Article excerpt

During the Obama and Trump Administrations, state litigation has emerged as a powerful new tool for challenging federal policy. President Obama's eight years in office saw Republican state attorneys general bring no fewer than forty-six lawsuits against the Administration. (1) As the political pendulum changed direction, so too did the partisan valence of state litigation: in President Trump's first year in office alone, his Administration defended thirty-five lawsuits brought by Democratic attorneys general. (2) At the heart of this litigation wave is Massachusetts v. EPA, (3) the U.S. Supreme Court's seminal decision on state standing, which held that states are entitled to "special solicitude" in the Article III standing analysis. (4) Massachusetts's expansive view of state standing, in combination with its corollary holding that states may compel agency action when their independent regulatory authority is curtailed by the federal government, (5) opened the courthouse doors to an array of state-initiated suits contesting agency action and inaction, in the forms of both failure to regulate and failure to enforce existing regulatory schemes. But in the years since Massachusetts was decided, its doctrinal legitimacy has drawn increasing skepticism from courts and academics alike. The power and breadth of special solicitude seems to be diminishing as judges move away from relaxed standing analyses, leading many practitioners to wonder how much longer the states will enjoy a meaningfully lowered barrier to entry in bringing lawsuits against the federal government. (6)

This Note puts forth an alternative approach to state standing that would offer lasting access to judicial review in cases where the federal government has failed to meet its enforcement obligations under federal law, should the power of special solicitude be diminished. It is premised on a theory of abdication injury, which asserts that, when the federal government exercises jurisdiction over a particular policy area to the exclusion of the states, the states have a concrete interest in challenging a unilateral executive decision not to enforce federal law. Part I describes the Supreme Court's state standing doctrine, with an emphasis on the developments that led to the emergence of special solicitude in Massachusetts v. EPA and threats to the continued vitality of that model. Part II focuses on Massachusetts's corollary conclusion that states may challenge agency inaction and the significance of state suits that seek to compel agencies to act. Part III, applying existing justifications for preferential treatment of states in the standing analysis, explores abdication standing as an alternative approach that would reframe the injury to states resulting from federal nonenforcement without reference to special solicitude.

I. Article III Standing and the States

In recent years, states have increasingly used litigation to challenge federal policy. This development has occurred in large part because the Supreme Court's Article III standing doctrine has evolved to allow states to act as plaintiffs in a wider range of cases. Expansive views of the injuries a state may allege, in combination with the advent of special solicitude, mean that states can often bring claims for which few other viable plaintiffs exist. This Part traces the shifts in standing doctrine that culminated in the landmark decision of Massachusetts v. EPA and the rise of state public law litigation. (7)

A. An Introduction to Standing

Constitutional standing doctrine establishes "the characteristics a person or another juridical entity must possess to bring a suit" in federal court. (8) Its purpose is to verify that "a matter before the federal courts is a proper case or controversy under Article III" and thus appropriate for the courts to hear in their constitutionally delineated capacity. (9) The Supreme Court outlined the requirements of modern Article III standing doctrine in Lujan v. …

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