Do States Have Standing?

Now that 14 states have sued to block the new health care law, the next question in the continuing federalist battle over this issue is whether the states have "standing" to sue. Under federal law, you can't challenge a law in court just because you don't like it; you have to show that the law injures you in some way. Do states satisfy this standard with respect to the new health care law?

First off, this question is a good illustration of why the rules of standing law are so often silly. As I have explained at length, standing doctrine doesn't serve much discernible purpose. The new health care law, and particularly its individual health insurance mandate, are obviously going to be challenged at some point, and courts will resolve the issue of the mandate's constitutionality. States would make excellent plaintiffs to bring these challenges -- they will have good lawyers and make all the arguments against the new law's constitutionality. And an important part of the case is whether the states or the federal government should be regulating health insurance. So what do we care whether the states are "injured" in some legal sense? Is there any actual value to waiting until suit is brought by some individual who has to pay the tax penalty for not having health insurance (and who would therefore clearly have standing to challenge it)? The courts are going to resolve this law's constitutionality one way or another, and it's hard to see what difference it makes who the plaintiff is.

Having said that, there is some real doubt as to whether the states have standing to challenge the health insurance mandate. The mandate applies to individuals, not to states. According to the states' complaint, many other parts of the act affect states directly, but it's not clear how the mandate does. So the direct injury could well be lacking. And that's not to mention that the mandate doesn't even kick in until 2014, making the suit somewhat premature.

States might try to assert standing under the parens patriae doctrine, under which governments can assert the rights of their citizens. But the Supreme Court declared long ago in Massachusetts v. Mellon that the states cannot use this doctrine to sue the United States. The Court said, "It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof." That's exactly what the states are trying to do with the present lawsuit, so it seems to be forbidden. For the same reason, it seems doubtful that a state passage of a law purporting to declare that citizens of that state don't have to buy health insurance if they don't want to makes any difference to the state's standing -- that's just more of the same.

On the other hand, in the recent case of Massachusetts v. EPA the Supreme Court took a more generous view and said that states were entitled to "special solicitude in our standing analysis." The standing of Massachusetts in that case was based primarily on its ownership of affected land (which might have been swamped by ocean level rises caused by global warming), but the Court included a footnote giving a narrow reading to Massachusetts v. Mellon and hinting that states could have standing to assert "quasi sovereign interests." The same footnote also, however, reiterates that states cannot sue to protect their citizens from the operation of federal statutes.

So while one hesitates to be dogmatic, and while there are cases that could be cited on both sides, the claim of the states to have standing to challenge the health care mandate seems doubtful. If it were up to me, I would say, let them go ahead, we might as well get these issues resolved now as later, but the courts may require us to wait until an individual with clearer standing brings suit.