In keeping with prior practice of flagging well-written student notes related to topics covered on this blog, consider taking a look at Securing State Sovereign Standing, by Katherine Mims Crocker, forthcoming in the November 2011 issue of the Virginia Law Review. The note brings conceptual clarity to a confusing area of standing doctrine, and argues that Virginia “possesses sovereign standing” in its challenge to the individual mandate in the Affordable Care Act. The note endorses the standing holding of Judge Hudson’s decision rejecting the federal government’s motion to dismiss for lack of jurisdiction in Virginia v. Sebelius, and some of the subsidiary arguments supporting it. The note also takes on some of the federal government’s arguments for dismissal for lack of standing on appeal to the Fourth Circuit.
I disagree with the note’s conclusion with respect to standing in Virginia v. Sebelius, as well as some of the subsidiary arguments. But I agree with the note’s careful reading of Massachusetts v. Mellon as rejecting not only parens patriae standing, but also sovereign interest standing.
My jurisdictional analyses of Virginia v. Sebelius (in this amicus brief and this draft law review essay) have not focused directly on state sovereign standing, but on statutory subject-matter jurisdiction, advisory opinion doctrine, and the redressability prong of standing analysis. Because so much of the Fourth Circuit argument and the Virginia Attorney General’s defense of jurisdiction depends on arguments about state sovereign standing, I aim to devote some future posts to addressing the topic more directly than I have in the past.