Representational Standing: States and Parens Patraie
Article III, Section 2, Clause 1:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The right of a state to sue as parens patriae, in behalf of its citizens, has long been recognized.1 No state, however, may be parens patriae of its citizens “as against the Federal Government.” 2 But a state may sue to protect the its citizens from environmental harm,3 and to enjoin other states and private parties from engaging in actions harmful to the economic or other well-being of it citizens.4 The state must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves;5 it must articulate an interest apart from those of private parties that partakes of a “quasi-sovereign interest” in the health and well-being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court's wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts.6
The distinction between suits brought by states to protect the welfare of their 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.,7 the state was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,8 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 20 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 rather “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.’” 9
Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest 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.” 10
The continuing vitality of this case is in some doubt, as the Court has limited it in a similar case.11 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.12
One clear limitation had seemed to be solidly established until later litigation cast doubt on its foundation. It is no part of a state's “duty or power,” said the Court in Massachusetts v. Mellon,13 “to enforce [its citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the state that 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 flow from that status.” But, in South Carolina v. Katzenbach,14 while holding that the state lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 196515 under the Fifth Amendment's Due Process Clause and under the Bill of Attainder Clause of Article I,16 the Court decided on the merits the state's claim that Congress had exceeded its powers under the Fifteenth Amendment.17 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 that is contrary to a number of supposedly venerated cases?18 Either possibility would be significant in a number of respects.19
- Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the propriety of parens patriae suits but denying it in this particular suit).
- Massachusetts v. Mellon, 262 U.S. 447, 485–486 (1923). But see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such standing to raise two constitutional claims against the United States but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n.1 (1970) (no question raised about standing or jurisdiction; claims adjudicated).
- Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S. 365 (1923).
- Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (antitrust); Maryland v. Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth's opportunity to participate in federal employment service laws).
- New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365, 376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976).
- Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court's standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a state to bring suit on behalf of its citizens should be commensurate with the ability of private organizations to do so. Id. at 610. The Court admitted that different considerations might apply between original actions and district court suits. Id. at 603 n.12.
- 220 U.S. 277 (1911).
- 324 U.S. 439 (1945).
- 324 U.S. at 447–48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), in which the state was permitted to sue as parens patriae to enjoin the 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, 607–08 (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, 737–39 (1981).
- Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented.
- 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 Pub. L. No. 94-435, 90 Stat. 1383 (1976), 15 U.S.C. §§ 15c et seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced the significance of the law.
- 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). Although 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 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).
- 262 U.S. 447, 486 (1923).
- 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).
- 79 Stat. 437 (1965), 42 U.S.C. §§ 1973 et seq.
- 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).
- The Court did not indicate on what basis South Carolina could raise the issue. At the beginning of its opinion, the Court noted that “[o]riginal jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945).” 383 U.S. at 307. But surely this did not refer to that case's parens patriae holding.
- 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, 73 U.S. (6 Wall.) 50 (1868); Mississippi v. Johnson, 71 U.S. (4 Wall.) 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. at 117 n.1. See also id. at 152 n.1 (Justice Harlan concurring in part and dissenting in part); South Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 U.S. 367 (1984).
- Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 80–93.
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