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Let’s make this hypothetical. Two U.S. states, East Lumbago and West Lumbago, which share a common border. It’s a First Amendment issue, specifically: “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” We’ll presume that it is settled law that state and local governments are held to these standards.

In East Lumbago, any organizer who wants to stage a group demonstration must apply for an assembly permit. The organizer must show a certificate that they have taken an East Lumbago-approved course in Safe Public Assembly and pass a background check that confirms that they have never been convicted of riot or other serious crimes related to demonstrations. All common-sense restrictions to protect the public. Any person who organizes a demonstration without a valid assembly permit is subject to arrest and imprisonment.

But here’s the kicker: under state law, East Lumbago assembly permits are only issued to residents of East Lumbago. If you live in West Lumbago or any other state, you can’t get an East Lumbago assembly permit, so if you go ahead and organize a demonstration, you’ll be arrested and prosecuted.

There have been grumbles about East Lumbago’s assembly permits, but the state makes a convincing argument that in the interest of public safety, the government must know about a demonstration in advance and take steps to prepare for it, and known, convicted troublemakers must lose the right to organize demonstrations for life. And the residency requirement? East Lumbago’s legislature, in the preamble to their public assembly law, spoke of the need to end the scourge on society of outside agitators and rabble rousers coming to their fair state and causing trouble, and for this reason, only East Lumbago residents are eligible to organize a demonstration.

West Lumbago activists and organizers feel that due solely to their residence in a state other than East Lumbago, they suffer unequal protection of their First Amendment right of assembly / petition by being denied assembly permits in East Lumbago. They ask their Attorney General to take the case directly to the Supreme Court on their behalf, since the Supreme Court has original jurisdiction in all disputes between the states.

Does West Lumbago have standing? Is the abridgement of the civil rights of its residents when they travel to East Lumbago a sufficient cause of action for the Supreme Court to take up the case directly rather than going through the usual district court / circuit court / Supreme Court routine?

I'm aware that a state may act as parens patriae for its citizens by suing another state on environmental grounds or on economic grounds when the state has a demonstrable interest distinguishable from the interests of individual citizens for whom it is suing. But for a civil rights case? I'm just not sure and I'd like to know.

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    Seems there'd be some hairs to split over the difference between organizing a demonstration vs. merely participating in one. If an East Lumbagan sets up the permits and such, would residents of West Lumbago be allowed to drive over there to take part in the demonstration? What if that East Lumbagan who set up the permits was the only East Lumbagan in attendance (or they didn't attend at all), and all the rest were from other states? Seems like all you'd need is one resident of the state to set things up, and you could fill the crowd with as many outside agitators as you like. Jul 5 at 13:29
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    @DarrelHoffman All perfectly true with a nod to your insight. An infinity of other variations put us at risk of getting lost in the weeds when the root question is limited to a states's standing in a Supreme Court case defending its citizens' rights that are abridged by another state.
    – MTA
    Jul 5 at 13:59

3 Answers 3

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No.

The original jurisdiction of the U.S. Supreme Court for disputes between states applies only to disputes between the state entities themselves, not suits on behalf of their citizens.

Something like this was attempted, and failed, in the litigation following the 2020 election producing a ruling in December 2020:

[In] Texas v. Pennsylvania, Georgia, Wisconsin and Michigan? Texas sought to overturn the presidential voting results in those four states. It urged the justices to prevent their presidential electors from meeting and to require state legislators to appoint a new slate of electors. Texas ran into two huge problems in seeking the Supreme Court’s review: standing and the Electors Clause.

Standing is the key to the courthouse door under the court’s appellate or original jurisdiction. The Constitution mandates that federal courts exercise judicial power only over cases and controversies. Texas had to show it had suffered a concrete and particularized injury to a legally protected interest “that is fairly traceable to the challenged action (causation)” and that injury can be remedied by a favorable ruling.

Texas argued that the four states it was suing had used the Covid-19 pandemic as an excuse to “usurp” their legislatures’ authority and unconstitutionally revised their state election laws through executive action or friendly lawsuits. Texas claimed that the four states’ actions threatened Texas’s voting rights. Texas, it said, had standing to protect its citizens.

But here was where Texas also ran into the Constitution’s Electors Clause. As Pennsylvania chief deputy attorney general told the justices, the text of the Electors Clause itself “makes clear, the injury caused by the alleged usurpation of the (Pennsylvania) General Assembly’s constitutional authority belongs to that institution.”

The Electors Clause is found in Article II, Section 1, clauses 2 and 3: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.”

The justices also consider with the issue of standing a related question of whether the state suit involves a justiciable controversy, that is a controversy that can or needs to be addressed by the court. As Georgia argued in its response to the Texas complaint, Texas wanted to alter how the four states appoint their electors. But there is a “textually demonstrable constitutional commitment” to each state’s political branches for how the state appoints electors—once again the Electors Clause.

Georgia added: “This Court has never allowed one state to co-opt the legislative authority of another state, and there are no limiting or manageable principles to cabin that kind of overreach.” Thus, there was no justiciable controversy, much like the Supreme Court found with excessive partisan gerrymandering.

The Supreme Court, in an unsigned order, denied Texas’s motion for leave to file a bill of complaint. The court’s order said the motion was denied “for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

Justice Samuel Alito Jr., joined by Justice Clarence Thomas, included in the order a statement that said: “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.”

Justices Alito and Thomas believe the text of Article III, Section 2 establishes the court’s original jurisdiction in mandatory terms. They emphasize the word “shall” in that section and see no justification for their colleagues’ reading that word to mean “may.” They are presently the only justices who read the section as requiring the court to take original jurisdiction of all cases between two or more states.

It’s important to remember that those two justices said they would allow Texas to file its bill of complaint, they also said they would not give Texas the remedy it was seeking—to invalidate the four states’ electors chosen by the votes of their citizens.

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    This citation is very much on point with regard to the question as posed, and it makes a persuasive argument that a state has no standing in a defense of the constitutional rights of its citizens outside of its borders. Thank you.
    – MTA
    Jul 5 at 0:57
  • However, upon further reading, Cornell's Lii takes a more nuanced approach. States can sue another state on behalf of its citizens but "[T]he state must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves; it must articulate an interest apart from those of private parties that partakes of a 'quasi-sovereign interest' in the health and well-being, both physical and economic, of its residents in general ...." Note the emphasis on economic or physical harm but no mention of civil rights.
    – MTA
    Jul 5 at 20:14
  • Link to Cornell Lii above is law.cornell.edu/constitution-conan/article-3/section-2/clause-1/…
    – MTA
    Jul 5 at 20:15
  • @MTA I'm not sure that's really any difference. Basically, the state itself, and not just people associated with a state, has to have an interest for SCOTUS original jurisdiction to be present. For the most part, this has been interpreted to involve boundary and water right type disputes.
    – ohwilleke
    Jul 5 at 20:18
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    Citations given on the Cornell page include Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (antitrust); Maryland v. Louisiana, 451 U.S. 725, 737–739 (1981) (discriminatory state taxation of natural gas shipped to out-of-state customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (discrimination by growers against Puerto Rican migrant workers and denial of Commonwealth's opportunity to participate in federal employment service laws). (All economic and no civil rights cases here of course.)
    – MTA
    Jul 5 at 20:20
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I don't know of any actual case where one state sued another on behalf of its citizens. I incline to doubt whether West Lumbago would have standing to bring such a case. Normally the person (natural or legal) must individually have suffered harm, or deprivation of rights, or imminent and near certain prospect of harm or deprivation. West Lumbago has not suffered any direct harm, nor any deprivation of its rights.

However, any resident of West Lumbago who has personally applied for a permit and been turned down would have standing to sue. As a matter of form such a person would not sue East Lumbago itself, but its Governor, or its Commissioner of Public Demonstrations, or some official who has authority to enforce the law. Then West Lumbago could file a brief as an amicus curiae (friend of the court) in support of the plaintiff.

Such a suit, on the facts assumed in the question, looks like a sure winner to me. The Equal Protection clause of the 14th Amendment reads

No state shall ... deny to any person within its jurisdiction the equal protection of the laws.

I think the hypothetical law would be a denial of Equal protection. It is true that states are allowed to charge non-residents higher fees, particularly higher tuition at state universities. But only in a quite limited set of circumstances has such disparate treatment been allowed. I don't think this would apply.

For the matter of that, I am pretty sure that the provision that:

The organizer must show a certificate that they have taken an East Lumbago-approved course in Safe Public Assembly and pass a background check that confirms that they have never been convicted of riot or other serious crimes related to demonstrations.

would be struck down as a violation of the 1st Amendment's guarantee of Free Speech, as incorporated against the states by the 14th. I know that requirements that organizers obtain insurance have been struck down. A state may place "restrictions of time, place, and manner" on speech. These must be content-neutral, and not excessively burdensome. I suspect that the quoted provisions would be found to be excessively burdensome. But I can't think of a case clearly on-point.

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    @Savage47 To the best of my knowledge, no such provision has ever been adopted by any state. Therefore no such case has been litigated. Thus there can not be a truly authoritative answer. Given that, I attempt to show what I think would be the issues raised by such a provision, and the ,more usual course of procedure in addressing it. You are free to present a better answer, if you have one. Jul 4 at 21:48
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    Excellent answer as usual, thank you. Recently, NH requested leave to sue MA on behalf of NH residents over MA taxing them on wages earned while working remotely. Both sided argued standing. Supreme Court declined to hear the case, but we don't know if standing was the reason or if it was MA's argument that it was a temporary measure to maintain tax revenues during the pandemic. In researching my question, I found other suits against states by states on behalf of its citizens for environmental issues.
    – MTA
    Jul 4 at 21:48
  • Then West Lumbago could file a brief as an amicus curiae (friend of the court) in support of the plaintiff — could they cover the full fees in full?
    – gerrit
    Jul 5 at 7:56
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    @gerrit In such a case West Lumbago could probably cover the plaintiff's fees if it chose to -- states have wide discretion in how to spend money -- but I doubt that it would do so. Jul 5 at 13:36
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    @DavidSiegel you are right, a court brief is (?) much less resource intensive than representing a client, and the difference in political benefit is probably not enough to justify the expenditure. Public opinion has attention span measured in days, maybe weeks for particularly big cases (which this wouldn't be), so no reason to stay on the case once public opinion moves on.
    – jaskij
    Jul 5 at 17:23
-5

Every state has its own jurisdiction and thus has no right to assert its own law in another jurisdiction.

If it's a federal issue between the federal government and state A, I dont see how State B is even involved.

Maybe if it's a issue people felt strongly about they might assist the citizen, but there's no way they could bring the case themselves.

Sometimes, if there's a dispute two states, the federal government will invoke the interstate commerce clause but thats not what the question is.

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    In the hypothetical case, the (potentially) suing state is not seeking assertion of its own law in another jurisdiction. It is seeking equal protection under the U.S. Constitution for its own citizens in another jurisdiction where it has no power. It's an interested party only in that its citizens' civil rights have been abrogated, and it goes to a higher authority -- the Supreme Court -- to decide. Does it fly? That's the question.
    – MTA
    Jul 4 at 22:23
  • @mta- you're missing the point. Regardless, if we're talking about CIVIL rights thats a federal usurpation of power any not regulated by the constitution which means no state would have any justification to challenge it.
    – Savage47
    Jul 5 at 2:13
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    @Savage47 The right to free speech and demonstration is specifically protected by the First Amendment and incorporated upon the states by the 14th Amendment. Each applies to any person within the jurisdiction of that state, not merely its own citizens, so the state law here would be pretty clearly prohibited by the U.S. Constitution. The question was just whether another state would have standing to bring a case to have that law invalidated on the grounds of infringing the rights of its own citizens.
    – reirab
    Jul 5 at 16:49

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