//  6/20/17  //  Commentary

Maryland and the District of Columbia have sued President Trump for failing properly to address many of his business connections.  The standing of state governments to challenge federal actions in federal courts has become an active and controversial area of constitutional law.  Texas sued the Obama Administration about its deferred action order regarding undocumented immigrants.  Hawaii, Oregon and Washington have sued the Trump Administration over the travel ban.  The scholarship on these issues has started to emerge and consider the nuances of these issues.  The question I want to consider ever so briefly in this post is whether state standing to challenge federal action has a geographical dimension.

Not every state will be injured at all, or the same amount, by federal action.  The Fifth Circuit’s decision in Texas v. United States noted that “at least in Texas . . .  the causal chain” between federal action and state harm was particularly significant.  Because the actions of the Obama Administration “would enable at least 500,000 illegal aliens in Texas” to prove lawful residence and potentially receive a license, Texas had standing.  In Massachusetts v. EPA, the Supreme Court mentioned the “Massachusetts coastal land” that would be affected by “global sea levels.”

One of the reasons why state standing could be asymmetric is geographical.  A state’s location can affect whether and how much federal action affects its interests.  If Texas was not a big, border state, the number of driver’s licenses it would be forced to issue could be dramatically less.  If Massachusetts was landlocked, it would not have “coastal land” affected by global sea levels.  If the State of Washington in Washington v. Trump did not have internationally oriented universities (particularly because of their ties to Asia), then state interests derived from “assert[ing] the rights of their students” could be less compelling because there would be fewer international students.

The new Emoluments Clause lawsuits inevitably presents a version of this argument: can Maryland and the District of Columbia claim unique standing to challenge actions of the federal government because their location means the federal government affects them so much more?  The concentration of important federal officials in the Washington metropolitan area is something I have written about previously and presently.

Maryland and D.C.’s theory in this case is that the unfair competition they face from the Trump Organization confers standing on them.  The complaint mentions geographical dimensions of this claim at least implicitly.  The financial harms to private and state business interests in both places is greater because the Trump Organization has tried to leverage the status of the President more in Maryland and D.C.  The District of Columbia, for instance, mentions the business that D.C. receives from working with foreign embassies, and how the Trump International Hotel in D.C. has unfairly undermined that business.  The fear that Maryland and D.C. face from competing too aggressively with the Trump Organization is more significant because both jurisdictions have economies heavily reliant on federal financial support and so fear retribution even more. 

For all of the claims of the importance of horizontal federalism, the Founders themselves knew that jurisdictions more proximate to federal power would have a different relationship with federal power.  James Madison talked often, for instance, of “the diffusion of wealth” from federal monies that would accrue to proximate jurisdictions, and theorized ways that proximate jurisdictions would be different.


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