Standing Too Tall

FUN FACT: The state of California sued the Trump administration at least 122 times, averaging one new lawsuit every 12 days.

Since Donald Trump left office, the state of Texas has been in hot pursuit of the Biden administration, having filed at least 27 suits against the federal government since the White House changed hands. In one of those suits, United States v. Texas, the Supreme Court is considering the limits around states’ standing to sue the federal government.

In its Texas brief, the United States cites a recent article by Professors Ann Woolhandler and Michael Collins, “Reining in State Standing,” which argues that current standing doctrine was designed for individual plaintiffs and there should be a presumption against state standing.

“If one believes that standing doctrine is an important structural limitation on the federal courts’ ability to make pronouncements of law restraining the political branches and other parties, then the upsurge of state-initiated suits is a matter of concern,” they write.

The impetus for U.S. v. Texas is the way the federal Immigration and Customs Enforcement Agency has prioritized the removal of different categories of immigrants under different administrations. In a country with 11 million undocumented immigrants, the priority has shifted from one administration to another, and Texas and Louisiana now allege they have standing to challenge these guidelines because they will increase the number of undocumented immigrants in their states, and so increase the incarceration, education and health care costs for the state. Under the theory of standing, these higher costs are the cognizable injury.

Woolhandler and Collins propose limiting state standing to cases in which states are the direct regulatory objects of federal statutes and regulations.

In a post on SCOTUSBlog, Professor Amanda Frost, who joined the faculty last fall, seconded her new colleagues’ position, writing that their approach would fit more comfortably with states’ traditionally limited role as litigants before federal courts.

“Under the tripartite requirements for standing, a plaintiff must show an ‘injury in fact’ that is traceable to the challenged action and redressable by a court,” Frost writes.

But that standard gives states “enormous leeway” to claim injury on behalf of themselves or their citizens “because almost any change to federal policy will have a fiscal impact on a state and its residents.”

Limiting states to standing as regulatory objects would help to restore some limits on state standing, Woolhandler and Collins write in their article. continues page 32 continues page 32