The Volokh Conspiracy

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What's Left Standing of Special Solicitude for States After U.S. v. Texas?

The Supreme Court did not overturn the standing holding of MAssachusetts v. EPA, but it may have left it on life support.


On Friday, in United States v. Texas, the Supreme Court held that Texas and Louisiana lack Article III standing to challenge Department of Homeland Security's immigration enforcement guidelines which, the states allege, violate applicable federal statutes which require the arrest of certain non-citizens, pending their removal from the country. Justice Kavanaugh wrote for the Court, joined by the Chief Justice and Justices Sotomayor, Kagan, and Jackson. Justices Gorsuch, Barrett and Thomas concurred in the judgment. Justice Alito dissented. 

In rejecting the states' claims to have Article III standing, Justice Kavanaugh purported to distinguish Massachusetts v. EPA, in which the Court had held that states are entitled to a "special solicitude" when asserting standing to sue the federal government. According to Justice Kavanaugh, nothing in his opinion implicates the Massachusetts holding. Justice Gorsuch, joined by Justices Thomas and Barrett, expressed some skepticism on this point, as did Justice Alito in dissent. I share their skepticism. As I read Justice Kavanaugh's opinion, it undercuts the premises upon which Massachusetts rests (and I am okay with that, having been critical of the Massachusetts standing holding since the beginning).

From the outset of his opinion for the Court, Justice Kavanaugh evaluates the states' standing arguments as if they were no more entitled to invoke Article III jurisdiction than anyone else. So, in his introduction, Justice Kavanaugh writes:

The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests. But this Court has long held "that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973). Consistent with that fundamental Article III principle, we conclude that the States lack Article III standing to bring this suit. 

In Justice Kavanaugh's formulation, it is a "fundamental principle" or Article III standing jurisprudence that "citizens" cannot contest the federal government's prosecution policies, so states cannot either. This point is repeated in his conclusion:

In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. 

Justice Kavanaugh does not claim that federal immigration enforcement policies will not impact the plaintiff states. He simply argues that is insufficient to establish standing, particularly insofar as those harms are "Indirect," and the sort that would not usually justify Article III standing for anyone else (an argument the concurring justices can avoid, as they believe the standing problem here is redressability). Write Kavanaugh in a footnote:

To be sure, States sometimes have standing to sue the United States or an executive agency or officer. See, e.g., New York v. United States, 505 U. S. 144 (1992). But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State's claim for standing can become more attenuated. See Massachusetts v. Laird, 400 U. S. 886 (1970); Florida v. Mellon, 273 U. S. 12, 16–18 (1927); cf. Lujan, 504 U. S., at 561–562. In short, none of the various theories of standing asserted by the States in this case overcomes the fundamental Article III problem with this lawsuit. 

Justice Kavanaugh goes on to note that " the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court," while refusing to countenance the claim that the standing analysis should differ because the plaintiffs are states. 

Justice Kavanaugh purports to distinguish Massachusetts on the grounds "the issue there involved a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge to an exercise of the Executive's enforcement discretion." Courts can readily order agencies to consider rulemaking petitions, but they cannot necessarily direct executive branch enforcement decisions. Fair enough, but that seems like a slim read upon which to avoid considering Massachusetts. After all, the whole point of a "special solicitude" is that states may sometimes have standing when ordinary citizens would not, so pointing out that this is the sort of case in which citizens could not sue does not resolve the matter. Constraining the holding in this way may help make U.S. v. Texas a narrower opinion, but it does not address the argument that, whatever the underlying claim, states are to get a "special solicitude" that others do not.

The remaining justices do not seem particularly convinced by the majority's attempt to avoid confronting Massachusetts. In his opinion concurring in the judgment, Justice Gorsuch writes:

the Court contends that, "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property." Ante, at 6. Here again, in principle, I agree. But if an exercise of coercive power matters so much to the Article III standing inquiry, how to explain decisions like Massachusetts v. EPA? There the Court held that Massachusetts had standing to challenge the federal government's decision not to regulate greenhouse gas emissions from new motor vehicles. See 549 U. S., at 516–526. And what could be less coercive than a decision not to regulate? In Massachusetts v. EPA, the Court chose to overlook this difficulty in part because it thought the State's claim of standing deserved "special solicitude." Id., at 520. I have doubts about that move. Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules "ha[d] no basis in our jurisprudence." Id., at 536 (ROBERTS, C. J., dissenting). Nor has "special solicitude" played a meaningful role in this Court's decisions in the years since. Even so, it's hard not to wonder why the Court says nothing about "special solicitude" in this case. And it's hard not to think, too, that lower courts should just leave that idea on the shelf in future ones.

Justice Alito, writing in dissent, is also unconvinced, arguing that the Court is abandoning its (by now) established practice of granting states "special solicitude" to raise all manner of claims. The Court could, of course, overturn that part of the Massachusetts holding, but it has not done so. Accordingly, Justice Alito writes, the Court should be as permissive of Texas and Louisiana as it has been of other states. He writes:

The reasoning in that case applies with at least equal force in the case at hand. In Massachusetts v. EPA, the Court suggested that allowing Massachusetts to protect its sovereign interests through litigation compensated for its inability to protect those interests by the means that would have been available had it not entered the Union. In the present case, Texas's entry into the Union stripped it of the power that it undoubtedly enjoyed as a sovereign nation to police its borders and regulate the entry of aliens. The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection—in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas's standing argument with any "special solicitude," we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing. 

Despite the clear parallel with this case and the States' heavy reliance on Massachusetts throughout their briefing, the majority can only spare a passing footnote for that important precedent. Ante, at 13, n. 6; see Brief for Respondents 11, 12, 14, 16–18, 23; see also Brief for Arizona and 17 Other States as Amici Curiae 7–12. It first declines to say Massachusetts was correctly decided and references the "disagreements that some may have" with that decision. Ante, at 13, n. 6. But it then concludes that Massachusetts "does not control" since the decision itself refers to "'key differences between a denial of a petition for rulemaking and an agency's decision not to initiate an enforcement action,'" with the latter "'not ordinarily subject to judicial review.'" Ante, at 13, n. 6 (quoting 549 U. S., at 527) (emphasis added). The problem with this argument is that the portion of Massachusetts to which the footnote refers deals not with its key Article III holding, but with the scope of review that is "ordinarily" available under the statutory scheme. Importantly, Massachusetts frames its statement about declining enforcement as restating the rule of Heckler v. Chaney, 470 U. S. 821 (1985). See 549 U. S., at 527. And Cite as: 599 U. S. ____ (2023) 17 ALITO, J., dissenting as the Court acknowledges when it invokes Heckler directly, that decision is not about standing; it is about the interpretation of the statutory exception to APA review for actions "committed to agency discretion by law." 5 U. S. C. §701(a)(2); see 470 U. S., at 823; ante, at 11. And even in that context, Heckler expressly contemplates that any "presumption" of discretion to withhold enforcement can be rebutted by an express statutory limitation of discretion— which is exactly what we have here. 470 U. S., at 832–833. So rather than answering questions about this case, the majority's footnote on Massachusetts raises more questions about Massachusetts itself—most importantly, has this monumental decision been quietly interred? Cf. ante, at 3 (GORSUCH, J., concurring in judgment). 

Justice Alito has a point. The theory underlying the Massacahusetts standing holding may well have been wrong. (I certainly think it was.) But it is difficult to argue that, insofar as the theory controlled there, it should control here too. Moreover, as Justice Alito notes, the Court has since allowed states to pursue claims against the federal government on flimsier standing rationales, as in Little Sisters of the Poor v. Pennsylvania

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___ (2020), two States sued under the APA and sought to compel the Department of Health and Human Services to cease exercising regulatory enforcement discretion that exempted certain religious employers from compliance with a contraceptive-coverage mandate. Id., at ___–___ (slip op., at 11–12). The issue of the States' standing was discussed at length in the decision below, see Pennsylvania v. President United States, 930 F. 3d 543, 561–565 (CA3 2019), and in this Court, no Justice suggested that the Constitution foreclosed standing simply because the States were complaining of "the Execu- 18 UNITED STATES v. TEXAS ALITO, J., dissenting tive Branch's . . . enforcement choices" regarding third parties. Ante, at 7. 

Just last Term in Biden v. Texas, two States argued that their spending on the issuance of driver's licenses and the provision of healthcare for illegal immigrants sufficed to establish Article III standing and thus enabled them to sue to compel enforcement of a detain-or-return mandate. See Texas v. Biden, 20 F. 4th 928, 970–971 (CA5 2021). The Court of Appeals held that the States had standing, ibid., and the majority in this Court, despite extended engagement with other jurisdictional questions, never hinted that Article III precluded the States' suit. 597 U. S., at ___–___ (slip op., at 8–12). If the new rule adopted by the Court in this case is sound, these decisions and others like them were all just wasted ink. I understand that what we have called "'drive-by jurisdictional rulings'" are not precedents, see Arbaugh v. Y & H Corp., 546 U. S. 500, 511 (2006), but the Court should not use a practice of selective silence to accept or reject prominently presented standing arguments on inconsistent grounds. 

In my opinion, the Court has made it too easy for states to file suit in federal court, waging what are essentially political battles over federal policy. Recognizing this error and abandoning "special solicitude" would thus be a welcome development, but it is a step the Court is not willing to take–at least not explicitly.

While the Court never says Massachusetts v. EPA is overruled, it is hard to read the opinions and not see the justices backing away from "special solicitude" holding. The structure of the majority's argument implicitly casts "special solicitude" aside, and no justice expresses any principled support for the doctrine.

One reason not to throw "special solicitude" overboard could be that the Court has yet to decide the student loan case, and the states (or, more precisely, the state of Missouri) has the strongest standing claim of any of the plaintiffs there. Some justices (read: Kavanaugh or Roberts) might believe it is hard to vindicate Missouri's standing claim there without at least some special solicitude. I am not sure that's right (and think some arguments purporting to show Missouri lacks standing are quite weak), but perhaps that is what's going on.

In any event, the states lacked standing to challenge federal immigration policy here, and I think the message going forward to lower courts is to be more standing about swallowing aggressive or innovative state standing claims in the future.