Notice & Comment

Washington State’s Standing To Challenge the Immigration Executive Order

This past week Washington state jumped into the fight against President Trump’s executive order limiting immigration, filing suit in district court in Washington. The district court issued a nationwide temporary stay of the order, and the United States has now appealed to the Ninth Circuit.

One of the major issues in the case is whether Washington has standing.  Because they are sovereigns, states have broader potential standing than private individuals; they can establish standing in three ways. First, a state can establish standing to seek an injunction by alleging an injury to a proprietary interest, such as injury to the state’s land or interference with a state’s business venture. Second, a state’s standing can be based on an injury to its sovereign interests, such as the state’s interests in enforcing its criminal and civil laws. Third, state standing can be based on an injury to a state’s quasi-sovereign interests. These interests are ill-defined, but basically include the state’s interest “in the well-being of its populace.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 602 (1982).

In this case, the district court found that Washington has standing based on injuries to its quasi-sovereign and proprietary interests. For quasi-sovereign interest, the court said the Executive Order “adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.”

If it were up to me, this type of injury should suffice for Washington’s standing. As I’ve said before, states should have the power to assert the constitutional rights of their residents in suits against the federal government. But it’s not up to me, and under current doctrine the injury probably does not support standing.

In Massachusetts v. EPA, the Court explained that states have standing to protect their citizens by asserting their own rights under federal law in suits against the federal government, but a state does not have standing to “to protect her citizens from the operation of federal” law. Washington’s suit is largely of the latter sort. Almost all of its claims are that its residents should not be subjected to the Executive Order because it is unconstitutional. The one possible exception is the APA claim that Washington has brought. That claim does seem to assert Washington’s rights.

I have the opposite take on Washington’s injuries to its proprietary interests. Under current law, Washington’s proprietary injuries probably do suffice for standing, but I am not sure that they should. Washington’s proprietary harms are that the Executive Order will hurt its public universities and the state’s general ability to operate.

If Washington were a private individual, these injuries would not be enough because they are speculative and not concrete. Washington’s universities haven’t identified any students or faculty that face an imminent threat of being barred, and any harm to the universities’ reputations is not concrete. Nor has Washington established that the Executive Order will imminently impair its ability to operate.

But Massachusetts v. EPA blurred the lines between quasi-sovereign and proprietary standing for states. There, the Court found that Massachusetts had standing to challenge the EPA’s failure to regulate carbon dioxide. The Supreme Court explained that, when they have quasi-sovereign interests at stake, states are entitled to “special solicitude” in the standing analysis. But the Court did not base standing on an injury to Massachusetts’s quasi-sovereign interests. Instead, it said Massachusetts had standing because global warming would erode Massachusetts’s land. That injury was to Massachusetts’s proprietary interest.   Although the injury was to a proprietary interest, the Court still appeared to give “special solicitude” to Massachusetts by relaxing the imminence requirement. Even though the land would not be harmed for decades, the Court found the harm sufficient.

It’s difficult to see why states should face a lower bar for proprietary standing. When a state asserts a proprietary interest, it is in the same position as a private individual. Still, under Massachusetts, Washington’s speculative, nonconcrete injuries may well suffice for Washington’s standing.


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