If those cases had been decided in the twenty-first century, they might have been called Massachusetts v. Sawyer, have not typically had state plaintiffs. The landmark decisions of our history, cases like Dred Scott v. Measured by the yardstick of the first two centuries of constitutional cases, it is not typical for so many of our major public law cases to have names like United States v. The last decade and a half is not normal. States - often large coalitions of states, all represented by attorneys general from the opposite political party of the President - now file suits challenging any important action taken by the executive branch. In just the last decade and a half, states have come to dominate the public law scene. 9 In that case, a narrow majority of the Court read state standing broadly, saying states were to be given “special solicitude in our standing analysis.” 10 The consequences have been predictable. And there is a doctrinal side, especially the Supreme Court’s decision in Massachusetts v. 8 There is an institutional side to the story, including a dramatic infusion of resources and expertise into the offices of state solicitors general. All of these developments from the twentieth century put greater pressure on standing doctrine, as courts increasingly came to use it as a filter for the cases to be decided.īut one more source is especially important for the centrality of standing in the twenty-first century: the role of states as litigants against the federal government. Still other reasons standing has become more central are doctrinal developments of the 1970s, not all of which have survived on their own: easy implication of statutory causes of action, the shift to enforcing public law rights primarily through injunctions rather than damages, and the growth of structural injunctions. Yet another is the shift beginning in the 1970s toward expansive preenforcement review of agency rules. 7 Another is a gradual shift over the twentieth century: from having public law questions answered defensively, when the law was being enforced against someone to having such questions answered offensively, via suits for injunctions and declaratory judgments. One is procedural fusion, with the consequent loss of law and equity’s distinctive formal structures. The centrality of standing doctrine in contemporary U.S. 5 And standing may have been the reason for the Court’s stay of a lower court decision about the legality of the abortion drug mifepristone. 4 Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Texas 3 and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brown, 2 as well as the challenge to the Administration’s immigration priorities in United States v. Nebraska 1 and Department of Education v. In the last Term at the United States Supreme Court, standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v.
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