Academic journal article Notre Dame Law Review

The Private Rights of Public Governments

Academic journal article Notre Dame Law Review

The Private Rights of Public Governments

Article excerpt


Federal courts law is replete with hallowed dictums that are figuratively resonant but literally false. Among these is Marbury v. Madison's admonition that "[t]he province of the court is, solely, to decide on the rights of individuals." (1) Taken literally, this dictum would close the courthouse doors to government plaintiffs, not to mention any plaintiff who sues to enforce the rights of the public. Perhaps federal courts should take Marbury's dictum for all it literally says, but they do not, not really. Understood figuratively, however, Marbury might be read to enshrine a private rights model into the law of federal jurisdiction. (2)

Contemporary standing doctrine reflects the private rights model. Standing, the Supreme Court has held, is "an essential and unchanging part of the case-or-controversy requirement of Article III." (3) Under the private rights model of standing, private litigants have standing to vindicate their own private rights in an Article III court. But a private litigant who seeks to vindicate a public right stands on unsure footing. (4) That, in rough outline, is the law of private standing today. (5)

How does the private rights model apply to the standing of states to sue in federal court? The answer may seem obvious: distinguish, as the Court did in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, between a state's "proprietary interests" on the one hand and its "sovereign" and "quasi-sovereign" interests on the other. (6) For purposes of standing doctrine, proprietary interests are like private rights. The Snapp Court suggested, while sovereign and quasi-sovereign interests are uniquely public rights. (7) The easy cases are those in which a state sues to vindicate proprietary interests. (8) The hard cases are those that involve a state's sovereign or quasi-sovereign interests, (9) particularly because the Court suggested in Massachusetts v. EPA that such interests may be due "special solicitude in [the] standing analysis." (10) In short, while a state's sovereign or quasi-sovereign interests may not fit within the private rights model of standing, a state's proprietary interests surely do.

This Essay's aim is to think more carefully about the puzzle of a public government's "private" rights. It is not apparent how the private rights model of standing maps onto state standing, particularly in suits against the federal government. Historically, "public rights" encompassed a government's proprietary interests in property held on behalf of the public. (11) And today, state litigation against the federal government has put the distinctions among proprietary, sovereign, and quasi-sovereign interests under strain. States have brought politically controversial suits and requested nationwide injunctions based upon injuries that may look like typically private, judicially cognizable injuries, yet arguably raise the separation of powers concerns that Article III standing doctrine is designed to avoid.

Thus, the distinction between "proprietary" interests on the one hand and "sovereign" or "quasi-sovereign" interests on the other does not neatly track the private rights model of standing. Consider the following cases, which raise hard questions about how to parse a state's proprietary interests in suits against the federal government:

* A state with a substantial egg farming industry sues a federal agency, alleging that it has harmed the state's economy by promulgating new egg-related regulations. (12) The state argues that it has suffered a financial injury, the "paradigmatic" (13) basis for Article III standing. Such "Wallet Injury," (14) the state argues, is a prototypical proprietary interest. Has the state alleged a proprietary interest that suffices for standing purposes?

* The President issues an executive order directing the construction of a border wall. A state with territory along the border sues. (15) It alleges that the wall will negatively impact land the state owns. …

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