Preemption and Federal Government Standing

By Mike Dorf

In my latest FindLaw column, I analyze the government's lawsuit against Arizona and the recent D. Mass decisions invalidating Section 3 of the Defense of Marriage Act, as applied to Massachusetts.  I focus on two related issues: 1) How rights and federalism intertwine; and 2) the fact that states' sovereign interests need not be conservative relative to liberal federal policies.  Neither point is especially novel but the juxtaposition of these two high-profile cases nicely illustrates both.  Here I want to raise a somewhat more technical legal point about the lawsuit against Arizona, having to do with the legal standing of the federal government.

First, a very brief review of general principles.  Article III empowers federal courts to hear "cases" and "controversies."  That language, along with the background notion of separation of powers, has been the source of a set of modern limits on the jurisdiction of federal courts.  The Constitution, under current doctrine, does not allow federal courts to issue advisory opinions, for such opinions do not arise in live "cases" or "controversies."  Thus, a case that is not yet ripe, or which is moot, or in which a party or parties lack a real stake in the outcome, is not within federal jurisdiction.  That last requirement goes under the name of "standing."  It is typically contested in a case in which a private party sues either the government or another private party to stop some alleged future wrong.  Unless the harm is "concrete,"  "imminent," and "particularized," the courts will disallow the suit.

Standing doctrine rarely plays a role in cases in which the federal government acts as plaintiff or prosecutor, but it lurks in the background.  If the federal government prosecutes Robbie the Robber for bank robbery in violation of federal law, the government's concrete stake is its sovereign interest in enforcing the law.  Usually when the government sues or prosecutes a case that sovereign interest is at stake, but this does not mean that the federal government automatically has standing in every conceivable case.  Suppose a drunk driver negligently operates his car, crashing into my house and causing substantial property damage.  I can sue the driver but the federal government has no interest in this dispute.  If I choose not to sue, the driver still may be prosecuted by the state of New York for DUI, but that's because the driver's conduct infringed the state's sovereign interest in the enforcement of its penal law.  Assuming that the driver violated no federal conduct rule, the federal government is a stranger to this dispute, and thus has no basis for suing.

But does this mean that the federal government has standing to sue to enforce all federal laws and constitutional provisions? Perhaps.  To be sure, Congress can, in writing a statute, deprive the federal government of the power to sue to enforce.  In essence, whenever Congress writes a federal statute, it is a question of statutory construction whether that statute authorizes enforcement actions in court by the federal government.  (There is also a question of statutory construction whether statutes authorize enforcement via private rights of action: Of late, the answer is basically no, unless the statutory language clearly confers a private right of action.)  Apart from statutory limits, are there any Article III limits on the ability of the federal Executive to bring suit to enforce federal law?

That question is lurking in the Arizona case.  Clearly the federal government has standing to bring the case it has brought.  Its complaint and brief in support of its motion for a preliminary injunction set out the federal government's sovereign interest in resisting Arizona's efforts to "over-enforce" federal law.  (I explain in the column why the government legitimately believes such over-enforcement impairs federal interests.)  In fact, the federal government seems like the ideal plaintiff to bring a lawsuit against a state claiming that some state law is preempted by federal law, even though preemption typically arises in litigation between private parties and the state: A state attempts to enforce some law against private party and the private party defends on the ground that the law is pre-empted by a federal statute; or a private party brings a lawsuit to enjoin the imminent enforcement of some state law that she alleges is preempted.

But now consider the next possible lawsuit.  Suppose the federal government were to bring suit against Arizona to enjoin enforcement of its immigrant-detention law on the ground that it will lead to violations of the equal protection and Fourth Amendment rights of Latino/Latina-appearing U.S. citizens residing in Arizona.  There could be a ripeness question of the sort that would arise even in a private suit, but let's assume that enforcement is sufficiently imminent to overcome that.  Isn't the federal government nonetheless attempting to assert the rights of others?  What is the government's concrete stake in such a case?

The answer, I think, is that the federal government ALWAYS has Article III standing to sue to enforce a federal obligation.  Presumably this is why there is no problem with Congress having authorized the Justice Department to bring various civil rights lawsuits, regardless of whether the underlying rights are statutory or constitutional.  The federal interest in preempting a state law that is inconsistent with federal immigration policy seems obvious because we imagine the case as a conflict between Arizona and the U.S.  But we also have a conflict between Arizona and the U.S. if Arizona is allegedly violating anybody's federal rights.

None of the foregoing is to say that a lawsuit by the federal government--as opposed to litigation by private parties, administrative action, or some other means of dispute resolution--is the best approach to such cases.  But it does suggest that Article III standing (as opposed to other Article III limits or statutory limits) should just about never be an obstacle to a suit by the federal government to enforce federal law.

Interestingly, there appears to be some contrary authority in the federal appeals courts, elegantly discussed (and criticized) in section 3531.11 of the Wright & Miller treatise.  To my mind, however, the arguments advanced in the contrary authority do not really go to show that the federal government lacks Article III standing but go more to how to construe congressional silence on the question of whether there is, or needs to be, statutory authorization for the federal government to sue to enforce federal law.