State Parens Patriae Standing To Challenge the Federal Government: Overruling the Mellon Bar
States represent their citizens; their citizens’ interests are the states’ interests.1 Our country was created on this idea of federalism,2 both the states and the federal government acting as a restraint on one another. 3 With the growth of federal government and the administrative state due to the complexities of modern society, this restraint on the expansion of each sovereign government continues to be essential. In the past few years, the number of instances where states have brought suit against the federal government has significantly increased. 4 Generally, a state has the right to sue as parens patriae to prevent or repair harm to its quasi-sovereign interests5—a category of interests we shall discuss later.6 Although states can often sue on the grounds of harm to its sovereign, quasisovereign, or its proprietary interests, there exists a bar—which we will refer to as the Mellon bar—to parens patriae state standing to sue the federal government.7 But the question is whether this Mellon bar is still viable, and if not, what are the remaining limitations on states parens patriae standing to sue the federal government?
Some scholars, since Massachusetts v. EPA, have advocated for the expansion of state parens patriae standing to sue the federal government, but only under certain limited circumstances, such as in the context of federal agency inaction8 or the federal preemption of state law. 9 But other scholars, most prominently Professors Woolhandler and Collins, argue for the significant limitation of overall state standing on the belief that prohibiting state governments from litigating on behalf of citizens’ interests actually reinforces both federalism and separation of powers principles. 10 Despite Massachusetts v. EPA, Professor Woolhandler maintains the argument for restrictive state standing against the federal government. 11 Historically, however, the Framers envisioned a country built on the principles of federalism. Due to the increasing growth of the federal government, state-initiated judicial review over the federal government may be necessary to continue this federalism ideal.12
This Article argues something conceptually distinct from other scholars: states should—and in our analysis now do—have broad standing on parens patriae grounds to sue the federal government based on the quasi-sovereign interest of protecting the welfare and vital interests of their citizens.13 To support this assertion, this Article contends that the recent decision in Massachusetts v. EPA implicitly overruled, or at least made inapt where federal constitutional rights are being asserted against unconstitutional or unlawful federal executive action or inaction, the Mellon bar to preventing states from suing the federal government on parens patriae standing. By acknowledging and advocating the expansion of the parens patriae standing of states to challenge alleged violations of affirmative federal statutory or constitutional obligations, this approach stands in contrast to those of many prominent scholars.
