The New Public Standing

By Davis, Seth | Stanford Law Review, May 2019 | Go to article overview

The New Public Standing


Davis, Seth, Stanford Law Review


Table of Contents  Introduction I.   The Problem of the New Public Standing      A.  The Existing Debate      B.  The New Problem: States' Financial Injuries as the Basis          for Public Actions          1. Financial injuries to a state's proprietary interests             a. The Emoluments Clauses litigation             b. The travel ban cases          2. Financial injuries to a state's sovereign interests             a.  Lost revenue for regulatory programs and government                 services             b.  Increase in the costs of providing government services             c. General harm to a state's economy II. The Story of the New Public Standing     A. The Changing Nature of Legal Mobilization     B. The Confluence of Partisan Federalism and Executive Power     C. Ideological and Intellectual Shifts Within the Article III        Judiciary III. The Prospects of the New Public Standing      A. The Possibility of Special Disfavor      B. The Possibility of Special Solicitude IV. The Normative Dimensions of the New Public Standing     A. Arguments for Special Disfavor        1. Conceptual and doctrinal arguments           a. The form of the loss           b. The form of the underlying rights and remedies           c. The substance of the underlying claims and interests        2. Functional arguments           a. Judicial competence           b. Federalism        3. Private enforcement     B. The Arguments for Special Solicitude        1. Doctrine        2. Political accountability of state officials        3. Holding the federal executive branch accountable V. A Framework for the New Public Standing    A. Constitutional Standing       1. Private standing to sue based upon financial injuries       2. A state's proprietary losses       3. A state's sovereign losses    B. Prudential Standing       1. Third-party standing       2. Parens patriae standing    C. The Link Between the New Public Standing and the       Nationwide Injunction Conclusion 

Introduction

In 1968, Louis Jaffe celebrated that the federal courts had begun to grant citizens and taxpayers Article III standing to challenge government action on behalf of the public. (1) Later that year, the U.S. Supreme Court proved Jaffe prophetic, opening the door to taxpayer standing in Flast v. Cohen. (2) Individual litigants thus emerged as representatives of the public interest in federal court. (3) How times have changed. The moment of the individual standing upon her "conscience" (4) in federal court proved fleeting. By the mid-1970s, an increasingly conservative Supreme Court began to cut back on the standing of private litigants to vindicate public interests, or what this Article calls "private standing for the public." (5) And in 2007, the Court in Hein v. Freedom from Religion Foundation, Inc. all but buried Flast by treating it as a narrow exception to a general rule against individual taxpayer standing. (6)

Today's new public litigants are not private citizens or individual taxpayers seeking to stand for the public. In 2007, the Court also decided Massachusetts v. EPA, (7) which, in retrospect, all but announced state governments as the new public interest litigants. In affording the Commonwealth of Massachusetts "special solicitude in [the] standing analysis," it was not clear whether the Court was focused upon the State's financial injury as an owner of real property, its status as a sovereign government, or its capacity to represent its citizens. (8) But it has quickly become clear that states are significant public interest litigants in federal court.

In recent years, states have brought a spate of public interest suits against the federal government based upon financial injuries. (9) State standing to sue the federal government for financial injuries is "the new public standing." Fifteen states (plus the District of Columbia) relied upon financial harms to establish standing to defend provisions of the Affordable Care Act on appeal after President Trump threatened to allow the Act's health care exchanges to "explode. …

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