DOJ argues that Washington State has standing to sue under a doctrine called parens pastriae.
Standing Under Parens Patriae
In Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982) Puerto Rico contended that Puerto Rican workers that were employed in the apple farming industry were subject to working conditions more burdensome than those established for temporary foreign (migrant) workers, and by improperly terminating employment of Puerto Rican workers certain corporations had violated provisions of Immigration and Nationality Act of 1952, and implementing regulations. The lower district court had ruled that Puerto Rico lacked standing. A U.S. Court of Appeals revered this ruled. On appeal to the Supreme Court, it was held that Puerto Rico did in fact have standing under the parens patriae doctrine.
The Court ruled that a State must be more than “a nominal party without a real interest of its own.” The State “must assert an injury to what has been characterized as a ‘quasi-sovereign’ interest.”
This can include the “health and wellbeing — both physical and economic of its residents in general” but can also include “a similar state interest in securing residents from the harmful effects of discrimination” in order to “ensur[e] that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system.”
The Supreme Court in finding standing for Puerto Rico, held that even while not a state, because of its “state interest in securing residents from the harmful effects of discrimination.” Puerto Rico’s residents were found to often suffer from invidious discrimination. The Court found that if there were invidious discrimination as to states across state lines, “we have no doubt that a State could seek, in the federal courts, to protect its residents from such discrimination to the extent that it violates federal law.”
Alternatively, the Court explained that Puerto Rico has parens patriae standing to pursue its residents’ interests in the Commonwealth’s full and equal participation in the federal employment service scheme established by the laws involved here.
Using this precedent, the Court in State of Washington v. Donald Trump that temporarily suspended the travel ban for those extended visas to travel to the United States found standing on the part of the States on the basis that “[t]he executive order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.”
This ruling was based on Washington’s claim that it has an interest in the functioning and missions of their institutions of higher learning, as well as “operations, tax bases, and public funds.”
But Washington is not claiming that its citizens or residents are being harmed by being denied participation in a federal program. While the use of sworn affidavits from Microsoft, universities, etc., may establish a generalized harm, this is not enough to confer standing. The harm must be concrete and particularized. Washington cannot do so.
The Appeals Court in deciding on the merits is almost certain to reverse this decision on he basis that Plaintiff- Washington State-lacks standing here.
So where do we stand? What is the next move?