#SANCUTARYLAWS101 #WILLIAMANDMARY #LEARN
as the justification for a royal prerogative.21 This prerogative allowed the King of
England to personally sue as the sovereign on behalf of individuals, like minors,
who could not bring lawsuits themselves.22 Today, parens patriae is one type of
standing that states utilize to meet the standing prerequisite of the Article III case or
controversy requirement of the Constitution.23 Before delving too far into the nuances
of parens patriae standing, general standing requirements will be introduced as well
as state standing in order to place parens patriae into context.
1. General Standing
The “standing” requirement is enshrined in the “case or controversy” language of
Article III of the U.S. Constitution.24 A litigant must have standing in order to bring
a case before the Supreme Court.25 Standing doctrine is “‘built on a single basic
idea—the idea of separation of powers.’ In theory, standing limits Article III courts
to judicial business by requiring private litigants to show a concrete, imminent, and per-
sonal injury-in-fact traceable to the defendant and redressable by a judicial
remedy.”26
Unlike private litigants, “[a] state has standing to vindicate its ‘sovereign power . .
to create and enforce a legal code’ and to protect public health and welfare.”27
After the Supreme Court’s ruling in Massachusetts v. EPA,
28 states are often said
to have a more relaxed or easier standard for standing than private litigants.29 Thisis a result of the “special solicitude” given to states in that case, which is explicitly denied to individual litigants, and allows states to show a less direct injury than
21 See Shannon M. Roesler, State Standing to Challenge Federal Authority in the Modern
Administrative State, 91 WASH. L. REV. 637, 662 (2016). 22 See Kenneth Juan Figueroa, Immigrants and the Civil Rights Regime: Parens Patriae
Standing, Foreign Governments and Protection from Private Discrimination, 102 COLUM.
L. REV. 408, 431 n.119 (2002) (explaining the roots of parens patriae in English common
law which allowed the sovereign to use parens patriae status on behalf of children and
people with mental disabilities). 23 See Roesler, supra note 21, at 662 (“When this country achieved its independence, the
prerogatives of the crown devolved upon the people of the states. And this power still
remains with them, except so far as they have delegated a portion of it to the
Federal government . . . . The state, as a sovereign, is the parens patriae.”). 24 See U.S. CONST. art. III, § 2, cl. 1–2. 25 See Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions
Show That Standing Doctrine is Looking for Answers in All the Wrong Places, 97 MICH. L.
REV. 2239, 2239 (1999) (introducing the insistence of the Supreme Court that litigants show
standing as well as injury, causation, and redressability). 26 Seth Davis, Standing Doctrine’s State Action Problem, 91 NOTRE DAME L.REV. 585,
595 (2015) (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). 27 Id. (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601, 607 (1982)). 28 549 U.S. 497 (2007); see infra Section I.B.3. 29 See Davis, supra note 26, at 595.
William & Mary Bill of Rights Journal
Volume 27 (2018-2019)
Issue 2 Article 8
December 2018
Who’s Your Sovereign?: The Standing Doctrine of P eign?: The Standing Doctrine of Parens Patriae & atriae &
State Lawsuits Defending Sanctuary Policies
Lexi Zerrillo
Follow this and additional works at: https://scholarship.law.wm.edu/wmborj
Part of the Constitutional Law Commons, and the Jurisdiction Commons
Repository Citation
Lexi Zerrillo, Who’s Your Sovereign?: The Standing Doctrine of Parens Patriae & State Lawsuits
Defending Sanctuary Policies, 27 Wm. & Mary Bill Rts. J. 573 (2018),
https://scholarship.law.wm.edu/wmborj/vol27/iss2/8
Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship
Repository.
574 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 27:573
a raid on the outskirts of their town after President Trump signed executive orders initiating a crackdown on undocumented immigrants.5
Rumors immediately spread throughout the town that this was only the first of many raids to come, and as a result “twenty-one-hundred of the district’s twenty-five thousand students missedschool” the next day, and two thousand were absent on the following day.
6 The superintendent wrote a letter to parents, assuring them that the school “[did] ‘not anticipate any ICE activity occurring on school campuses’” but teachers and staff wereastounded by the two-day drop in attendance immediately after this initial raid.
7 This impact is not limited to borderland communities like those in New Mexico.
8 In 2016, educators in Prince George’s County, Maryland, wrote to the Department of Homeland Security citing emotional and social impacts of raids on their student communities.
9 Durham, North Carolina, also faced large drops in attendance “after a studentwas taken into custody by immigration agents while walking to school.”
10 These types of stories are only becoming more common, with one hundred people detained in Los Angeles in one week during the month of February 2018.
11 Some states and cities have responded by actively advising their law enforcement agents not to target sensitive locations, like schools, hospitals, or churches.
12 But these types of “sanctuary policies” have been targeted and adamantly threatened by the Trump Administration.
13 Questions linger about who, if anyone, can sue to stop the Executive Branch
from forcing states and municipalities to end these sanctuary policies. In recent Supreme Court history, Texas tried to sue to compel the Federal Government to enforce federal immigration laws.
14 But presented here is the inverse of what was at stake in United States v. Texas; the issue is whether the executive can force states to comply
with the federal immigration enforcement scheme, especially when that scheme
commandeers local and state police and commands them to apply certain tactics.
15 5 Id. 6 Id. (emphasis added). 7 Id. 8 Id. 9 Id. 10 Id. 11 James Doubek, ICE Detains More Than 100 in Los Angeles–Area Immigration Raids,
NPR (Feb. 15, 2018, 8:26 AM), https://www.npr.org/sections/thetwo-way/2018/02/15/58597
3495/ice-detains-more-than-100-in-los-angeles-area-immigration-raids [https://perma.cc
/C5TY-RGRQ]. 12 See infra note 92 and accompanying text. 13 See infra Section I.C. 14 United States v. Texas, 136 S. Ct. 2271 (2016). See also Jonathan Remy Nash, Sovereign
Preemption State Standing, 112 NW.L.REV. 201, 247–48 (2017) (discussing this lawsuit as
an example of states suing because of “underenforcement” of federal immigration law). 15 See, e.g., NAT’L CONFERENCE OF STATE LEGISLATURES, Summary of Executive Orders
on Immigration (Jan. 26, 2017), http://www.ncsl.org/research/immigration/summary-of-ex
ecutive-orders-on-immigration.aspx [https://perma.cc/H88B-AL3T] (discussing one of the
Executive Orders directed at sanctuary policies).
