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CRS Annotated Constitution

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The State as Parens Patriae.—The distinction between suits brought by States to protect the welfare of its citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,935 the State was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these commodities and had no proprietary interest in them. But in Georgia v. Pennsylvania R. Co.,936 a closely divided Court accepted a suit by the State, suing as parens patriae and in its proprietary capacity, the latter being treated by the Court as something of a makeweight, seeking injunctive relief against twenty railroads on allegations that the rates were discriminatory against the State and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a State for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but to “embrace the so called ‘quasi–sovereign’ interests which . . . are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.”’937

Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest[p.760]the development of a State and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.”938

The continuing vitality of this case is in some doubt, inasmuch as the Court has limited it in a similar case.939 But the ability of States to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court’s original jurisdiction such suits are not in favor.940

One clear limitation had seemed to be solidly established until recent litigation cast doubt on its foundation. It is no part of a State’s “duty or power,” said the Court in Massachusetts v. Mellon,941 “to enforce [her citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the State which represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as[p.761]flow from that status.” But in South Carolina v. Katzenbach,942 while holding that the State lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 1965 943 under the Fifth Amendment’s due–process clause and under the bill–of– attainder clause of Article I,944 the Court proceeded to decide on the merits the State’s claim that Congress had exceeded its powers under the Fifteenth Amendment.945 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion which is contrary to a number of supposedly venerated cases.946 Either alternative possibility would be significant in a number of respects.947

Controversies Between Citizens of Different States

The records of the Federal Convention are silent with regard to the reasons the Framers included in the judiciary article jurisdiction in the federal courts of controversies between citizens of dif[p.762]ferent States,948 but since the Judiciary Act of 1789 “diversity jurisdiction” has been bestowed statutorily on the federal courts.949 The traditional explanation remains that offered by Chief Justice Marshall. “However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.”950 Other explanations have been offered and controverted,951 but diversity cases constitute a large bulk of cases on the dockets of the federal courts today, though serious proposals for restricting access to federal courts in such cases have been before Congress for some time.952 The essential difficulty with this type of jurisdiction is that it requires federal judges to decide issues of local import on the basis of their reading of how state judges would decide them, an oftentimes laborious process, which detracts from the time and labor needed to resolve issues of federal import.


Footnotes

935 220 U.S. 277 (1911).
936 324 U.S. 439 (1945).
937 Id., 447–448 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), in which the State was permitted to sue parens patriae to enjoin defendant from emitting noxious gases from its works in Tennessee which caused substantial damage in nearby areas of Georgia) In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–608 (1982), the Court attempted to enunciate the standards by which to recognize permissible parens patriae assertions. See also Maryland v. Louisiana, 451 U.S. 725, 737–739 (1981).
938 Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented.
939 In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five–to–two, held that the State could not maintain an action for damages parens patriae under the Clayton Act and limited the previous case to instances in which injunctive relief is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by P.L. 94–435, 90 Stat. 1383 (1976), 15 U.S.C. Sec. 15c et seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced in importance the significance of the law.
940 Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), concern suits by one State against another. Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). While recognizing that original jurisdiction exists when a State sues a political subdivision of another State or a private party as parens patriae for its citizens and on its own proprietary interests to abate environmental pollution, the Court has held that because of the technical complexities of the issues and the inconvenience of adjudicating them on its original docket the cases should be brought in the federal district court under federal question jurisdiction founded on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971).
941 262 U.S. 447, 486 (1923).
942 383 U.S. 301 (1966). The State sued the Attorney General of the United States as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the problem that the States may not sue the United States without its consent. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same device as is used to avoid the Eleventh Amendment prohibition against suing a State by suing its officers. Ex parte Young, 209 U.S. 123 (1908).
943 79 Stat. 437 (1965), 42 U.S.C. Sec. 1973 et seq.
944 The Court first held that neither of these provisions were restraints on what the Federal Government might do with regard to a State. It then added: “Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parents patriae of every American citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
945 The Court did not indicate on what basis South Carolina could raise the issue. At the beginning of its opinion, the Court did note the “[o]riginal jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, Sec. 2, of the constitution. See Georgia v. Pennsylvania R. Co., 324 U.S. 439.” Id., 307 But surely this did not have reference to that case’s parens patriae holding.
946 See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially Georgia v. Stanton, 6 Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions were consolidated and decided. Two were actions by the United States against States, but the other two were suits by States against the Attorney General, as a citizen of New York, seeking to have the Voting Rights Act Amendments of 1970 voided as unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all parties as decisive of the jurisdictional question, and in announcing the judgment of the Court Justice Black simply noted that no one raised jurisdictional or justiciability questions. Id., 117 n. 1. And see id., 152 n. 1 (Justice Harlan concurring in part and dissenting in part). See also South Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 U.S. 367 (1984).
947 Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 80– 93.
948 Friendly, The Historic Basis of Diversity Jurisdiction, 41 L. Rev.483 (1928).
949 1 Stat. 78 , Sec. 11. The statute also created alienage jurisdiction of suits between a citizen of a State and an alien. See Holt, The Origins of Alienage Jurisdiction, 14 City L. Rev.547 (1989). Subject to a jurisdictional amount, now $50,000, 28 U.S.C. Sec. 1332 , the statute conferred diversity jurisdiction when the suit was between a citizen of the State in which the suit was brought and a citizen of another State. The Act of March 3, 1875, Sec. 1. 18 Stat. 470 , first established the language in the present statute, 28 U.S.C. Sec. 1332 (a)(1), merely requiring diverse citizenship, so that a citizen of Maryland could sue a citizen of Delaware in federal court in New Jersey. Snyder v. Harris, 394 U.S. 332 (1969), held that in a class action in diversity the individual claims could not be aggregated to meet the jurisdictional amount. Zahn v. International Paper Co., 414 U.S. 291 (1974), extended Snyder in holding that even though the named plaintiffs had claims of more than $10,000 they could not represent a class in which many of the members had claims for less than $10,000.
950 Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61, 87 (1809).
951 Summarized and discussed in C. Wright, Handbook of the Law of Federal Courts (St. Paul: 4th ed. 1983), 23; American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts (Philadelphia: 1969), 99–110, 458–464.
952 The principal proposals are those of the American Law Institute. Id., 123–134.
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