State Standing: The Arcane Issue at the Heart of the Immigration Ban Litigation

On Monday, advocates for the state of Hawaii will square off against the Trump Administration in a challenge to the most recent version of the President’s travel ban from six predominantly Muslim countries. At the heart of the litigation is a somewhat arcane issue — the state of Hawaii’s standing to bring the suit. Standing doctrine requires that a plaintiff must have some concrete interest at stake in the lawsuit that makes it a proper party to bring the case in the first place. Recent developments in standing law suggest that Hawaii has a strong leg to stand on, so to speak. Ironically, it was a decades-long effort by conservative judges, most notably the late Antonin Scalia, that tried to make the standing requirement more difficult to satisfy that just may have set the stage for the courts to rule in favor of state governments on the standing issue moving forward.

Prior to assuming his role on the Supreme Court, then-judge Scalia penned an influential law review article that advocated for a new view of standing, one which the Supreme Court would espouse just a few years later with Scalia on the Court. That view of standing was that only parties that could show they were harmed in a specific and concrete way, mostly by showing some economic injury, would be able to enjoy standing to sue. Proponents of this view of standing were critical of so-called “public law litigation”: lawsuits filed by parties with a political ax to grind who, it might be argued, had not suffered any real economic injury by the action they were challenging. The watershed decision that established this new view of standing was an environmental case in which the members of an environmental group, who failed to allege that they had any concrete plans to visit specific international regions affected by U.S. government policies, could not bring a lawsuit to challenge those government policies.

In the years since that decision, Lujan v. Defenders of Wildlife, written by Scalia, courts have erected barriers to public law plaintiffs, asserting that they need to allege some concrete injury in order to have standing to sue. But a funny thing has happened in litigation, particularly litigation brought by state governments seeking to halt federal government action or inaction. Courts have recognized that states do have certain concrete injuries that enable them to bring suit. One of the most significant of these cases was a lawsuit filed by a group of plaintiffs, led by the State of Massachusetts. In that case, Massachusetts v. EPA, the plaintiffs sued the administration of George W. Bush for its failure to take action to regulate greenhouse gas emissions. The Supreme Court, in an opinion joined by Justice Anthony Kennedy, the swing-man on the Court, found that Massachusetts had standing to sue, in part because it was itself a landowner and, as such, was threatened with a loss of its ocean-side properties due to rising sea levels that would accompany a failure to regulate these gasses.

Since that case, states have been lining up to sue the federal government, alleging all manner of economic injuries suffered by those states. For example, the State of Texas led a group of states in suing the Obama Administration over some of its immigration policies, alleging that if more immigrants had legal status, the state would have to expend economic resources to grant them driver’s licenses. Similarly, the State of Nevada led another group of states that sued the Obama Administration challenging new overtime policies favorable to workers. But those states did not sue over some grand principles of constitutional law. No, they sued because, as employers, they would be impacted economically and adversely by the new overtime rules and have to pay their employees more.

Hawaii’s case, like those cases brought by states against the Obama Administration, raises similar harms to the economic interests of the state. Notably, the state argues that it will lose tourism revenue and its state universities will suffer from diminished enrollment, both versions of direct, economic harm suffered by the state. So far, states challenging the travel ban have had success in alleging these sorts of injuries, as more conservative states found success in challenging acts of the Obama Administration by alleging similar, economic injuries.

As I argue in greater depth here, despite the effort to scale back public law litigation by narrowing the class of plaintiffs who can bring this type of lawsuit through a restrictive view of standing, states have found success by accepting and embracing this narrow view of standing and alleging the direct and economic harms they suffer as a result of policies they wish to challenge. The courts seemed amenable to efforts by conservative states to challenge federal policies by recognizing those states’ standing to sue; we’ll see how the courts respond to the efforts of more progressive states to do the same.