U.S. Supreme Court

Chemerinsky: When can state governments sue the United States?

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Erwin Chemerinsky. Photo by Jim Block.

A recurring issue before the Supreme Court this term, including in two cases to be argued in the next month, concerns when state governments have standing to sue the United States. Over the last decade, there has been an explosion of such suits.

During the Trump presidency, the suits were brought by states with Democratic leadership. Linda Greenhouse, in a recent book, observed that “during the Trump years, Democratic state attorneys general filed more than one hundred lawsuits against the administration, seeking to block new policies or prevent the rollback of existing ones.”

Now it is Republican governors and attorneys general challenging Biden administration policies. That, of course, is the context of the cases this term in the Supreme Court.

The law is firmly established that any plaintiff in order to have standing must allege and prove that it has been or imminently will be injured, that the harm was caused by the defendant, and that the injury is likely to be redressed by a favorable federal court decision. But the underlying question is what a state government must show in order to demonstrate that it has an injury sufficient for standing to sue in federal court to challenge executive actions. And ultimately the issue is what role the federal courts should play in these highly political lawsuits that pit the White House against state governments controlled by the other political party.

To be clear, this is not a new issue. For example, in 2007, in Massachusetts v. Environmental Protection Agency, the court held that Massachusetts had standing to sue the EPA for failing to adequately deal with the problem of climate change. In Department of Commerce v. New York, in 2019, the court allowed states to challenge the Trump administration’s choice to include a question about citizenship on census forms. More recently, in 2021, in California v. Texas, the Supreme Court held that Texas and other states lacked standing to challenge the constitutionality of the Patient Protection and Affordable Care Act because they could not show that they were injured.

What is notable this term is simply the number of cases that raise this question of whether states should be able to challenge federal policy and whether the court will adopt clearer rules as to when such suits are permissible.

United States v. Texas

In September 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memorandum announcing priorities with regard to enforcing federal immigration laws to deport those who are not lawfully in the United States. The memorandum explained that there are over 11 million undocumented immigrants in the United States, but there are resources to apprehend and deport a relatively small number of these individuals. The Mayorkas memo instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes and those caught recently at the border.

Texas and Louisiana went to federal court in Texas to challenge this policy. A conservative federal district court judge granted their request for a preliminary injunction, and the Fifth Circuit refused the request for a stay. The Biden administration then asked the Supreme Court for a stay of the district court’s injunction, but the court denied and granted review in the case without waiting for it to be heard and decided by the Fifth Circuit.

On Nov. 29, 2022, the court heard oral argument in United States v. Texas. The states argued that they have standing to sue because they have suffered financial harm from the Biden policy that allows more undocumented individuals to remain in the United States. The Biden administration contended that there are not resources to apprehend and deport all who are unlawfully present in the country; it thus cannot be shown that the Mayorkas memo is allowing more undocumented individuals to remain or causing any injury to the states.

Biden v. Nebraska

A central issue in Biden v. Nebraska, to be argued on Feb. 28, is whether state governments have standing to challenge President Biden’s relief for some student loan borrowers. In August 2022, Biden announced student loan relief pursuant to a federal statute, the Higher Education Relief Opportunities for Students Act of 2003, or Heroes Act, which permits the federal government to make changes to student-loan programs to respond to national emergencies.

Six states brought a lawsuit challenging this. The federal court dismissed the case, concluding that the states failed to show an injury sufficient for standing. The U.S. Court of Appeals for the Eighth Circuit reversed, allowing standing and granting a preliminary injunction. A central question before the court is what a state must demonstrate in order to show an injury sufficient for standing.

The court granted review in another case also to be argued on Feb. 28 about whether two student-loan borrowers have Article III standing to challenge the Department of Education’s student-debt relief plan, and if so, whether the department’s plan is statutorily authorized and was adopted in a procedurally proper manner. Central to both of these cases is who has standing to sue to challenge such a change in federal policy that provides a benefit to some individuals.

Arizona v. Mayorkas

The next day, March 1, the court will hear yet another case, Arizona v. Mayorkas, that implicates the ability of state governments to challenge the United States in federal court.

A federal law—often referred to as Title 42——permits the Centers for Disease Control and Prevention to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as [it] shall designate in order to avert” the spread of a “communicable disease” that is present in a foreign country. Early in the COVID-19 pandemic, the Trump administration announced that it would use this power to expel those entering at the Canadian and Mexican borders from the United States. Federal law generally allows those seeking asylum to come into the United States until their application can be heard, but the Trump order bars these individuals from remaining in the country. Since 2020, Title 42 has been used 2.5 million times to turn migrants back.

In April 2022, the Biden administration announced that it was rescinding the Trump order because it was no longer warranted by the COVID-19 pandemic. Soon after, a conservative federal district court judge in Louisiana enjoined this saying that the Biden administration did not follow proper procedures. The Biden administration’s appeal of this ruling is pending.

Meanwhile, in November 2022, federal district court Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He explained that the expulsion policy was no longer justified based on public health in light of the present state of the pandemic, which includes widely available vaccines, treatments and an increase in travel in the United States.

Nineteen states with Republican attorney generals then sought to intervene in the case and appeal it to the U.S. Court of Appeals for the District of Columbia Circuit. They had not participated in the district court and the law generally bars coming into a case for the first time in the appellate court. On Dec. 16, the federal court of appeals, following its precedents, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.

On Dec. 27, in Arizona v. Mayorkas, the Supreme Court not only said that it would hear the states’ appeal, but that it would require the Biden administration continue to use Title 42 to expel migrants. It was a 5-4 ruling by conservative justices Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Justice Neil Gorsuch joined the liberal justices in dissent, stressing that there was not a public health emergency that justified continuing to bar migrants.

Interestingly, the only issue before the court is whether the states should have been able to intervene and participate in the litigation. The merits of Judge Sullivan’s order are not before the court. Nonetheless, the court issued a stay of the trial judge’s order.

In conclusion

At a time when the country is deeply politically polarized, it is not surprising that conservative states are trying to get the federal court to block Biden policies, while liberal states went to federal court to challenge Trump’s policies. The cases this term could go a long way to deciding when state governments can do this.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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