The Volokh Conspiracy

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Update on New Hampshire v. Massachusetts

The Supreme Court did not resolve the case today, but did take the noteworthy step of asking for the views of the federal government.


On Saturday, I provided an overview of New Hampshire v. Massachusetts, an important "original jurisdiction" state vs. state case currently before the Supreme Court. At that time, I noted that we might know as soon as today how the Supreme Court intended to handle case, because this is the day when the Court would issue orders related to cases that went to conference on Friday, January 22 (including this one).

In reality, the only step the Court took on the case today, was issue an order inviting the acting Solicitor General "to file a brief in this case expressing the views of the United States." Obviously, this is only a very modest step. But it does suggest the Court is taking the case seriously, and is unlikely to dismiss the case out of hand, as it did with a number of previous original jurisdiction cases, such as last month's "Texas Turkey" attempting to overturn the election results in some key swing states.

It will also be interesting to see where the Biden Administration comes down on the case. As a general rule, Democratic administrations often favor the interests of high-tax blue states, which might mean supporting Massachusetts' efforts to tax remote workers employed by Massachusetts firms, but working in other states. But, as the amicus briefs show, blue states are actually divided on this case, with Connecticut, New Jersey, and Hawaii joining a brief supporting New Hampshire. The latter is itself a purple state trending slowly blue, and a a potential swing state in presidential and senatorial elections.

One possible easy out for the administration would be to avoid taking a position on the substantive issue, but argue that New Hampshire doesn't have standing to bring the case. That might also be attractive to them because clamping down on state standing might make it tougher for red states to sue the Biden Administration itself. I hope they do not go this route, but it's certainly possible.

Historically, political liberals have often favored loose standing rules, while conservatives have favored tighter ones. But that pattern has become muddled in recent years, as both right and left often take opportunistic positions on standing, depending on whose ox is being gored in a particular case. I myself have long favored abolishing standing requirements entirely, and I have held this view during both Democratic and Republican administrations. But I admit my position isn't likely to prevail anytime soon.

Whatever the administration decides to do, it looks like this case isn't likely to go away quickly. The Court has already had it under consideration for many weeks, and it seems increasingly likely that they are going to give it a full hearing.