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Start Hitting Yourself: Chemerinsky Considers The Interesting Question Of When A State Can Sue The State

Between the suits and gerrymandering, I'm not so sure people even like this democracy thing anymore.

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Erwin Chemerinsky dean Irvine Law Berkeley Law Boalt Hall public domain picture

Dean Erwin Chemerinsky (public domain photo via Wikimedia)

Not sure who said it, but ages ago some president made the prediction that a house divided against itself will have pyrrhic fights in courtrooms. I think that the hat guy was on to something. A consequence of our overpoliticization — even mentioning which events should go in history books or the prospect that global warming is an actual issue counts as dog whistling nowadays, is that the ballot no longer seems sufficient to determine the will of the people. Courtrooms have been pushed into the fray. And as states sue each other to get their way, a very important question arises. How, constitutionally speaking, does one go about doing that?

A recurring issue before the Supreme Court this term, including in two cases to be argued in the next month, concerns when state governments have standing to sue the United States.

Everyone knows that Americans are no stranger to some in-fighting — we had a whole Civil War after all. And a Marvel spinoff some time later.

Chemerinsky goes on to list several cases and their implications for impacting the standing requirements states would have to meet to sue Papa ‘Merica: United States v. Texas, Biden v. Nebraska, and Arizona v. Mayorkas. From a theoretical perspective, these cases will be useful in curtailing the ambiguities that pertain to when states can sue the State. Thinking about the practicality of the litany of these challenges, what the fuck happened to non-justiciability doctrine? At first glance, all three of these cases center around political questions. I wonder, is it a sign of strength or decline that we’ve reached such a point of political stalemate that even are “neutral” branches are being compelled to rule on political matters by way of shadow dockets and reframing them as merely issues of standing?

However this plays out, I hope that there’s ultimately some endgame to all of the litigation. We already had the Marvel spinoff.

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Chemerinsky: When can state governments sue the United States? [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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