States and Parens Patriae

prev | next

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

A state has standing to sue in its sovereign capacity for injuries to its own interests.1 For example, the Supreme Court upheld standing for: (1) Wyoming to sue Oklahoma for an injury to its ability to collect a specific tax that allegedly resulted from Oklahoma requiring its coal-fired electric utilities to burn at least 10% Oklahoma-mined coal;2 (2) California to sue the Secretary of the Interior for injury to its financial interests from the Secretary of Interior choosing one form of bidding system over another in awarding leases for oil and gas exploration development of Outer Continental Shelf lands;3 and (3) several states from increased natural gas costs resulting from a Louisiana tax on natural gas imported into the state.4

On June 30, 2023, the Supreme Court issued a decision on Article III standing in Biden v. Nebraska, a case in which six state attorneys general challenged a Department of Education student debt-relief program allegedly authorized under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).5 The challenged student debt-relief program would have canceled between $10,000 and $20,000 per eligible student borrower, amounting to a total of about $430 billion in forgiven debt principal.6

The Court ruled that, of the six states that had challenged the program, at least Missouri had Article III standing to sue because the debt-relief plan would cost “MOHELA, a nonprofit government corporation created by Missouri to participate in the student loan market, an estimated $44 million a year in fees.” 7 Because MOHELA was an instrumentality of the State of Missouri “by law and function,” an injury to MOHELA in the performance of its public function was “necessarily a direct injury to Missouri itself.” 8 Although MOHELA was not a party to the lawsuit, the Court held that “[w]here a State has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State from suing to remedy that harm itself.” 9 On the merits, the Court held that the Department lacked the statutory authority to establish the program, determining that it could not rely on generally worded provisions of the HEROES Act to authorize a program of major “economic and political significance.” 10

However, a distinct issue of representational standing arises when a state seeks to sue on behalf of its citizens in federal court. The Supreme Court has long recognized that a state may sue as parens patriae—literally, “parent of his or her country” 11 —but only when it has a separate “sovereign interest” at stake in the outcome of the controversy.12 And while a state may sue to assert its rights under federal law, it may not sue to protect its citizens from federal law on the grounds that Congress has intruded upon an area of traditional state authority.13

For instance, in Massachusetts v. Mellon the State of Massachusetts sought to maintain a lawsuit against the federal government challenging the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.14 Massachusetts argued that Congress had usurped state powers over traditionally local matters in violation of the Tenth Amendment.15 The Supreme Court first found that the state lacked standing to sue on its own behalf because it had no separate sovereign interest that would be affected by the statute (e.g., a property interest).16 The Court then determined that Massachusetts lacked standing to sue as a representative of its citizens because it was the role of the federal government to act as representative, or parens patriae, of Massachusetts citizens with respect to federal laws.17 As a result, the Court reasoned that Massachusetts lacked standing to pursue its Tenth Amendment claim, which sought to protect its citizens from a federal statute.18

Several decades later, the Supreme Court discussed a state’s standing to sue protect its sovereign interests in a major environmental case. In the 2007 case Massachusetts v. EPA, the Court held that the State of Massachusetts had standing to challenge the Environmental Protection Agency (EPA)'s denial of a petition asking the agency to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA).19 The Court determined that Massachusetts had standing for two major reasons. First, the Court held that the because the dispute involved the proper construction of the CAA, and because Congress had granted a specific procedural right in the Act to protect the state’s concrete interests in EPA’s regulatory actions, the state had a personal stake in the outcome and could assert that procedural right without meeting the normal standards for immediacy and redressability.20 Second, the Court deemed Massachusetts’ alleged injury—its loss of shore land from global-warming induced sea level rise—an independent quasi-sovereign interest in preserving its territory separate from its citizens’ interests and thus sufficient for standing.21

The Supreme Court’s reasoning in Massachusetts v. EPA did not endorse the concept of parens patriae standing generally, but it did recognize that the states “are not normal litigants for the purposes of invoking federal jurisdiction.” 22 The court thus allowed Massachusetts’s suit as one that involved its rights under federal law (i.e., the CAA’s citizen-suit provision), and not solely an action (as in Mellon) involving a state seeking to protect its citizens from the operation of a federal statute.23 Although the Court also determined that Massachusetts had standing to sue for injury to its “quasi-sovereign” interest in protecting its territory, it is unclear whether the Court established a new precedent on a state’s standing to sue as parens patriae. The Court’s decision in Massachusetts v. EPA could be characterized as resting on principles of federalism and a state’s sovereign prerogative to regulate in-state motor vehicle emissions.

1: Massachusetts v. EPA, 549 U.S. 497, 516–20 (2007). See also West Virginia v. EPA, No. 20-1530, slip op. at 14 (U.S. June 30, 2022) (noting that states had been injured for Article III standing purposes when a federal appeals court decision had purported to revive an Environmental Protection Agency rule that required the states to “more stringently regulate power plant emissions within their borders” ).
2: Wyoming v. Oklahoma, 502 U.S. 437, 440, 451 (1992).
3: Watt v. Energy Action Educ. Found., 454 U.S. 151, 153 160–61 (1981).
4: Maryland v. Louisiana, 451 U.S. 725, 736 (1981).
5: No. 22-506, slip op. at 1 (U.S. June 30, 2023). In a separate case decided the same day, Dep’t of Education v. Brown the Court unanimously held that two private student loan borrowers lacked Article III standing to challenge the debt-relief program because they had not demonstrated that their asserted injury of failing to obtain debt relief under the Higher Education Act of 1965 was fairly traceable to the Department’s decision to establish a loan forgiveness program under a separate federal statute, the HEROES Act. No. 22-535, slip op. at 10–14.
6: Biden, slip op. at 6.
7: Id. at 8.
8: Id. at 8–9.
9: Id. at 7–12.
10: Id. at 13–18, 20–24. See also ArtI.S1.5.6 Major Questions Doctrine and Canons of Statutory Construction.
11: Black’s Law Dictionary 1221 (9th ed. 2009) (defining “parens patriae” as “a doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen” but stating that the “state ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit” ). For a historical discussion of parens patriae suits, see New York v. New Jersey, 256 U.S. 296, 301–02 (1921) ( “The health, comfort and prosperity of the people of the State and the value of their property being gravely menaced, as it is averred that they are by the proposed action of the defendants [in executing a sewer project that would allegedly discharge polluted water into New York Harbor], the State is the proper party to represent and defend such rights by resort to the remedy of an original suit in this court under the provisions of the Constitution of the United States.” ); Missouri v. Illinois, 180 U.S. 208, 241 (1901) ( “[I]f the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.” ). Since deciding these cases, the Court has taken a narrower view of the parens patriae doctrine. In particular, the Court now requires that the state have a “separate sovereign interest” at stake apart from litigating the “personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976).
12: Id. ( “It has . . . become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” ).
13: Massachusetts v. Mellon, 262 U.S. 447, 520 n.17 (1923).
14: Id. at 479. The Court consolidated the case with the above-discussed case of Frothingham v. Mellon.
15: Massachusetts, 262 U.S. at 479.
16: Id. at 482–85 ( “It follows that in so far as the case depends upon the assertion of a right on the part of the State to sue in its own behalf we are without jurisdiction. . . . [W]e are called upon to adjudicate, not rights of persons or property, not rights of dominion over physical domain, not quasi-sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government.” ).
17: Id. at 486.
18: Id.
19: 549 U.S. 497, 505–06 (2007).
20: Id. at 516–18 ( “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” ).
21: Id. at 518–20 (citing Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)).
22: Massachusetts, 262 U.S. at 518.
23: Id. at 520 n.17 ( “[T]here is a critical difference between allowing a State ‘to protect her citizens from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).” ) (citations omitted).