The Volokh Conspiracy
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W.O. v. Beshear, decided Friday by Judge Gregory F. Van Tatenhove (E.D. Ky.), held that the Kentucky Attorney General has standing to challenge, on behalf of Kentucky citizens, Kentucky Governor Andrew Beshear's revised travel restrictions.
Federal courts rarely encounter lawsuits brought by one state official against another. See Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 260 (2011) (hereinafter "VOPA"). In fact the Supreme Court, in VOPA, recently acknowledged the novelty when faced with such a suit. In that case, an independent state agency brought suit against certain state officials in their official capacities for alleged violations of federal law in the administration of state-run mental hospitals. And, there, the VOPA court considered a question which, on review, bears directly on the present standing analysis: whether the state agency could invoke the Ex parte Young exception to sovereign immunity in order to bring suit against the fellow state officials. The VOPA court concluded the state agency could invoke the exception, but that it needed two things to do so: "a federal right that it possesses against its parent State; and … authority to sue other state officials to enforce that right, free from any internal veto wielded by the state government."
In this case, the issue of sovereign immunity has not been raised. But, at a fundamental level, the question before this Court is remarkably similar to the question before the court in VOPA: when can one state actor bring suit in federal court against a fellow state official in order to protect the interests of the state? So, by logical extension, the requirements set forth in VOPA related to sovereign immunity bear upon the closely related issue of standing.
The first VOPA requirement, that the state actor possess "a federal right … against its parent State," speaks to the need for the party bringing suit to have a legitimate basis for entry into federal court. And, at a more basic level, it is also an important acknowledgement that a state actor may have standing to bring suit seeking prospective relief against a fellow state actor in order to vindicate the federal right.
The second requirement, that the state actor have the "authority to sue other state officials to enforce that right," speaks to the need to look to state law to determine who is allowed to bring suit on behalf of the state….
The "possession of a federal right against the parent State" requirement is easily met. The Attorney General, in challenging the various travel orders, argues that Governor Beshear has "overstepped the Constitution" and violated the "fundamental right of every Kentucky citizen to interstate travel." This federal right, also described as "the 'constitutional right to travel from one State to another[,]' is firmly embedded in our jurisprudence." And, like the rights at issue in the VOPA action, the federal right the Attorney General now seeks to vindicate ultimately exists to protect and advance the interests of individual citizens.
The second requirement, that the Attorney General have the authority to sue other state officials to enforce the federal right, requires a slightly more involved analysis. On this issue, the Court must look to Kentucky law…. "To vindicate [its] interest[s] … a State must be able to designate agents to represent it in federal court." …. Here, after looking to Kentucky law, it is clear that the Attorney General also meets this requirement.
In fact, the Kentucky Supreme Court recently addressed this exact question. In Commonwealth ex rel. Beshear v. Bevin, the Kentucky Attorney General sought to enjoin certain of the Governor's actions as unconstitutional. 498 S.W.3d 355 (Ky. 2016). After review of the applicable state statutory and constitutional provisions, as well as the common law powers of the Attorney General, the court held unequivocally that the Attorney General had "the power to initiate a suit questioning the constitutionality or legality of an executive action." The court explained further that the Attorney General as "chief law officer of the Commonwealth … is uniquely suited to challenge the legality and constitutionality of an executive … action as a check on an allegedly unauthorized exercise of power." Kentucky law could not be clearer on the issue of which state officer has the power to sue on behalf of the state in the present circumstances: it is the Attorney General. From a standing perspective, the rare procedural posture before the Court is appropriate—the Attorney General may proceed with his suit.
The decision doesn't decide whether the currently effective travel restrictions indeed violate the Constitution—only that the state Attorney General may indeed bring the challenge.