Justice Thomas Takes Aim at State Standing

In a brief exchange during a recent oral argument, the Justice suggested the Court should reconsider giving states "special solicitude" under Massachusetts v. EPA


In 2007, in Massachusetts v. EPA, the Supreme Court announced that state governments were due "special solicitude" for purposes of Article III standing. The Court's opinion by Justice Stevens did not explain what this meant, other than that states should have an easier time establishing standing as plaintiffs than private litigants, and not simply because states have some interests for which there may be no clear private analog.

Lower courts have been reluctant to try and define what "Special solicitude" entails, but it may not be coincidental that since Massachusetts, state attorneys general have become far more aggressive in their efforts to drive federal policy by bringing suit in federal court. Red State AGs sued the Obama Administration with increasing frequency between 2009 and 2016, and Blue State AGs have followed suit during the Trump Administration.

On May 6, the Supreme Court heard oral argument in Trump v. Pennsylvania (combined with Little Sisters of the Poor v. Pennsylvania), which considers a suit filed by the states of Pennsylvania and New Jersey challenging the Trump Administration's regulations providing for a broad conscience objection to the so-called "contraceptive mandate" under the Affordable Care Act. Most of the argument focused on the merits of the Administration's decision, and its authority to adopt the rule. Justice Thomas, however, wanted to talk about whether the states had standing to bring the case.

Justice Thomas first raised the issue with Paul Clement, who was representing the Little Sisters of the Poor, and brought it up again with Michael Fischer, Chief Deputy Attorney General of Pennsylvania, expressing discomfort with the idea that states have standing to challenge any federal regulatory change that "might impact . . . the state's costs," here by increasing the costs to the state of providing contraceptive coverage for women who are denied such coverage by their employers.

Under Massachusetts v. EPA, it would seem these increased costs are sufficient to establish standing, a point Clement readily conceded. AG Fischer added that the state could anticipate increased costs due to the Trump Administration rule based upon the given the federal government's "own estimates of the number of women affected" by the exemption.

Were Pennsylvania and New Jersey to lack standing in this case, it seems that other state litigants would have a more difficult time pressing their claims in federal court. For starters, the standing claim asserted by Texas in its lawsuit challenging the Obama Administration's immigration reforms would seem more questionable. It would also seem to (further) undercut the already weak standing claims in in California v. Texas, the latest challenge to the individual mandate.

[Note: I corrected Michael Fischer's title.]

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. There are few silver linings to this COVID crisis, but getting to hear Justice Thomas speak on a more consistent basis is one of them.

  2. We need a list of things in modern jurisprudence that Thomas hasn’t taken aim at.

  3. Justice Thomas had good reasons for his question. You should read the March for Life cert. petition.

  4. Thinking a bit outside the box, the question might be whether parens patriae is ultimately third-party standing or the act of a sovereignty. In other words, it’s hornbook that the harms incurred by the citizens have to be particularized and distinctly implicating state citizenship rather than federal. But can the state as a quasi-sovereign invent its own standard for harms?

    In other words, can the state decide that something which would be a peppercorn or an exercise in the conceivable in federal court actually pose a unique harm to its citizens, one not cognizable in the federal system, and attempt to vindicate that right as a sovereign? Say a state constitution recognizes the right to duel, a matter entirely within the state police power, and the federal courts have upheld the proposition that dueling is not protected under the federal constitution. An FEC regulation targeting organized crime bars any political candidate from accepting federal funds who has committed civil assault, even in pari delicto, over the last five years. Can the state assert a particularized harm arising from its own constitution?

    In other words, can the court test the asserted harms to the citizens against its own standard of harm (third party), or can a state of its own accord decide that its people have been harmed (quasi-sovereign), and the federal inquiry is limited to sufficient particularization of a non-federal claim? Again, thinking a bit outside the box.

    Mr. D.

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