State Standing and National Injunctions

By Mank, Bradford; Solimine, Michael E. | Notre Dame Law Review, May 2019 | Go to article overview

State Standing and National Injunctions


Mank, Bradford, Solimine, Michael E., Notre Dame Law Review


INTRODUCTION

Two controversies currently roiling the federal courts and federal courts scholarship are whether and to what extent states have standing as plaintiffs in federal court, and when, if ever, federal courts can issue national or nationwide injunctions (1) against the federal government, even when only one or a small number of states or other parties have brought suit. While federal courts have long permitted states to bring suit by virtue of their status as sovereigns, states have more aggressively brought such suits in the wake of the Supreme Court's decision in Massachusetts v. EPA, (2) which relaxed the standing requirements for states. Similarly, while for several decades some federal courts have issued injunctions binding the entire nation--beyond the scope of their particular geographic jurisdictions--it is only in the last few years that such injunctions have become a trend. Courts, commentators, and Congress are now weighing in on that trend. (3)

Both issues can arise in the same litigation, such as in Texas v. United States, where the Fifth Circuit struck down the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program granting lawful immigration status to potentially millions of undocumented immigrants. (4) The court there held that at least one of the twenty-six plaintiff States had standing, and that a nationwide injunction against enforcement of DAPA was appropriate. (5) But the convergence of the issues was almost coincidental, as the court did not discuss both the propriety of state standing and of a national injunction in any systematic way. Much the same can be said about the scholarly literature on these topics. Thus, most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. (6)

This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, courts should permit states to have standing under somewhat relaxed criteria as compared to what private plaintiffs must show. Part II turns to national injunctions; discusses the recent increases in the issuance of those decrees; and explores the controversy over when, if ever, federal courts possess powers under equity or standing criteria to bind the entire nation.

Part III addresses both topics in a coordinated manner. It acknowledges the benefit of states suing to protect federalism interests against the incursions of the federal government, but also addresses the pathologies of one or more states bringing suit, particularly in the partisanship demonstrated by states led by attorneys general or governors of states from the same political party suing to stop the actions of a presidential administration of a different party. While states in some circumstances have standing to sue, it does not automatically follow that even when successful the entire nation should be subject to an injunction. Rather, we propose an alternative to the dichotomy that courts always (or almost always) or, conversely, never have authority to issue such injunctions. We support the possibility of nationwide injunctions, but before issuing such decrees, courts should take into account factors such as the number and geographic and partisan diversity of the states, who (attorney general or governor) is representing a state, and which one or more states are opposing the decrees, as parties or amici curiae. These criteria would better inform and integrate judicial consideration of state standing and national injunctions when they arise in the same case. …

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