Essay: Who and What is a City “For”? Municipal Associational Standing Reexamined


Apr 30, 2021


    Cities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation— particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrine of associational standing, which nonprofits and associations use to speak for their members in court.

    Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we are well positioned to briefly revisit whether cities should be able to rely on a theory of associational standing to protect their residents, and what that tells us about standing law and local power more broadly. I argue that associational standing should still be a viable option for municipal standing in federal court. More broadly, I contend that a stable, reliable form of standing for cities to represent the interests of their constituents in federal court would be good for both the doctrine and the cities.


Table of Contents


I. Standing Standards

            A. Article III Standing Basics

            B. Parens Patriae Standing

            C. Associational Standing

II. Municipal Associational Standing

            A. Where We Started

            B. A City Is Not an All-Purpose Litigant

                     1. Membership: The Limits and Risks of Defining Who Belongs

                              a. Who Counts as a Member?

                                       i. Better Together

                                      ii. Leadership Participation, Selection and Guidance

                                     iii. Financing City Activity

                                     iv. Voluntary Association

                              b. How Many Members is Enough?

                     2. Municipal Purposes Have Meaning, and Limits

                              a. Municipal Purposes Are Set by State and Local Statutory, Regulatory, Constitutional, and Common Law

            C. Municipal Associational Standing Is Manageable and Appropriate

III. Pathways to City Standing

            A. Statutory Enforcement Power

            B. A Return to Parens Patriae

            C. A Unified Theory of Standing for Organizations




    Cities have been busy. They increasingly conduct affirmative, plaintiff-side litigation on a variety of issues affecting their residents, from the hyper-local to the national[1]—part of what Professor Kathleen Morris called a “rising culture of engagement” at the municipal level.[2] I, like many others, have welcomed this trend as both an important development for effective civil law enforcement and a reflection of the key role that municipalities play in their residents’ lives.[3]

    Many of us have observed, however, that standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court,[4] and particularly in impact litigation.[5] States routinely pursue litigation to protect their citizens in federal court.[6] Many have pointed out that cities have interests in the health and welfare of their residents very much like those of states.[7] However, few federal courts seem willing to allow cities to invoke the special standing doctrine that states have to litigate those interests. As an alternative, I have argued that cities should be able to rely on the doctrine of associational standing,[8] a similar concept that gives standing to other public and private associations to litigate in the interests of their members.[9]

    Several years on, the tide of local engagement has only continued to rise. Options for aggregate private litigation continue to narrow, and the federal government had (at least until quite recently) stepped back from enforcing many rights-protective laws on behalf of the public, increasing the need for local impact litigation.[10] Thus, cities and counties[11] have recently brought or joined suits relating to alleged abuses in the pharmaceuticals industry,[12] predatory lending,[13] environmental impact,[14] and unlawful federal government conduct,[15] among a myriad of other wrongs.[16] In some cases, cities brought suit alongside their states; in others, they brought suit in spite of their state.[17]

    As cities have continued (or tried) to tackle crucial issues through affirmative litigation, scholarly and critical attention to the trend has likewise increased.[18] We are now well positioned to briefly revisit whether cities should be able to rely on a theory of associational standing to protect their residents, and what that tells us about standing law and local power more broadly. I argue that associational standing should still be a viable option for municipal standing in federal court. More broadly, I identify several paths to standing and contend that a stable, reliable form of standing for cities to represent the interests of their constituents in federal court would be good for both the doctrine and the cities.

    Part II of this Essay provides a very brief refresher on key doctrines—standing generally, and parens patriae and associational standing in particular. Part III revisits parts of the analysis of whether cities can or should invoke the doctrine of associational standing in light of new developments and critiques. I conclude that cities still should, both doctrinally and normatively, be able to do so. Part IV then assesses what other changes could supplement cities’ representational standing in federal court. Part V briefly concludes.

I. Standing Standards

A. Article III Standing Basics

    Article III of the Constitution provides that the federal judicial power extends to deciding “cases” and “controversies.”[19] Ostensibly to stay within that constitutional role, federal courts require plaintiffs to show that they have standing to bring a claim, generally by demonstrating that they “have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent.’”[20] The injury must be “fairly ... trace[able] to the challenged action of the defendant” and “‘likely,’ as opposed to merely ‘speculative,’” to be redressable “‘by a favorable decision.’”[21]

    The Supreme Court also has long used “prudential standing” rules—“judicially self-imposed limits on the exercise of federal jurisdiction.”[22] Prudential standing limits have required that plaintiffs assert their own rights, not those of third parties; that the complaint falls within the “zone of interests” protected by the relevant statute; and that plaintiffs not seek redress for “generalized grievances” shared by many.[23] In 2014, in Lexmark International, Inc. v. Static Control Components, Inc.,[24] however, the Supreme Court reclassified the “zone of interests” question as one of the scope of the cause of action, and the bar on generalized grievances as a constitutional requirement.[25] It found the resistance to third-party standing “harder to classify,” and so it did not classify it.[26] Again in 2018, the Court declined to further specify the relationship between Article III and third-party standing.[27]

    The Court also recently considered city standing—specifically, to sue for Fair Housing Act (FHA) violations visited upon city residents.[28] In Bank of America Corp. v. City of Miami, Miami sued banks that it claimed engaged in predatory lending, hurting (particularly) minority residents and, in turn, the City.[29] The Supreme Court concluded that the City could be a “person aggrieved” with a statutory right to sue under the FHA (a category, it noted, that was as broad as Article III could permit).[30] In finding that the City’s claims fit within the relevant zone of interests, the Court noted that the banks allegedly “hindered the City's efforts to create integrated, stable neighborhoods” and “reduced property values, diminishing the City's property-tax revenue and increasing demand for municipal services.”[31] The Court had previously recognized that cities could sue to remedy behavior that imposes social and economic harms,[32] but it shied away from suggesting that the community-based (non-financial) harms were adequate to support city standing.

    Bank of America was not argued as a representational case, but one might wonder why, given that the heart of the harm seems to have been to residents. One answer is simply that other standing cases said so;[33] as discussed below, an effort to frame Miami’s interest as representational might well have failed

B. Parens Patriae Standing

    When states[34] sue in federal court, the Supreme Court has said that they generally pursue one of three types of interests: sovereign, quasi-sovereign, or proprietary.[35] Proprietary harms are like those of any other injured entity—for example, property damage.[36] Sovereign interests are governance interests—in things like adopting and maintaining a legal code.[37] Quasi-sovereign interests are a hazy category, but generally relate to the health and welfare of constituents and include things like the interest in maintaining clean air and water.[38]

    The Supreme Court has described a state’s quasi-sovereign interests as giving rise to parens patriae standing,[39] which allows a state to sue most private parties if it can show (1) a quasi-sovereign interest; (2) harm to a substantial portion of the population; (3) a distinct injury from that of its constituents; and (4) a cause of action under the relevant statute.[40] The Supreme Court has said that states receive “special solicitude in ... standing analysis,”[41] but what exactly that solicitude is or does remains unclear,[42] as does whether a state must satisfy Article III in addition to the doctrinal requirements for parens patriae standing.[43]

    Though in reality cities have valid “quasi-sovereign” interests like states, federal courts have been very reluctant to recognize them for standing.[44] Federal courts typically deny parens patriae standing to cities, noting that cities, as mere creatures of their states, lack the sovereignty on which state (or federal) parens patriae standing is based.[45] As several leading federalism and localism scholars have noted, there is little to recommend the fetishizing of states’ historic sovereignty in modern federalism doctrine, as it poorly reflects current federal-state (and by extension, state-local) governance relationships.[46] Unfortunately, federal courts’ adherence to old discourse around state sovereignty pervades the doctrine relating to governmental standing; this Essay will largely take such arguments on their own terms so as to provide practical guidance for prospective litigation.[47] And in litigation, the best that a non-sovereign city can often now hope for is a court that will broadly define a city’s proprietary interests as encompassing community welfare in some way. A few cases do just that—making proprietary interests include any injury to the “city itself,” in ways that verge on (if not veer into) sovereign or quasi-sovereign interests.[48]

C. Associational Standing

    As an alternative to parens patriae standing, I previously argued that cities should be able to avail themselves of associational standing—the doctrine that groups and associations like, famously, the NAACP, use to represent their members in federal court.[49] This form of standing is explicitly representational, depending on harm to members and not to the entity itself.

    In the leading case on associational standing, Hunt v. Washington State Apple Advertising Commission,[50] the Court explained that an association can sue on its members’ behalf when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”[51] The commission in that case was state-created, with legally mandated “members.”[52] Even so, the Court found that the commission acted like a private trade association: it served a “specialized segment of the ... community,” and its constituents “possess[ed] all of the indicia of membership in an organization” because “[t]hey alone elect[ed]” commission members, were eligible to serve as commissioners, and “finance[d] its activities” through levied assessments.[53] The Court observed that the members used the commission to express and protect their interests and that the commission itself would be affected by the litigation, which ensured “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.”[54]

II. Municipal Associational Standing

A. Where We Started

    I previously argued that cities straightforwardly, if not intuitively, fit the Hunt associational standing criteria.[55] Specifically, I argued that while we may not intuitively refer to city residents as members of their city, cities do serve a geographically specialized segment of the community,[56] and “[i]n a very real sense ... provide[] the means by which the[ir residents] express their collective views and protect their collective interests.”[57]

    Moreover, I argued that city residents possess the indicia of membership described in Hunt: they pick and comprise the city leadership and fund city activities through their taxes and fees.[58] If its residents are injured, then, the city should be able to show that it has at least one “member” with standing.

    And again, although we do not generally talk about the “purpose” of a city, these public corporations have myriad powers and obligations under state statutory, constitutional, common, and local law that can be proved to a federal court.59] When a city shows that it has a legal purpose that is germane to the suit, it will also assure the court that the city’s own interests are at stake, too.[60] And in injunctive cases over which there is no profound intra-city conflict, a city may very well be able to show that no participation by individual city residents will be required.[61]

    This overview suffices for us to consider new critiques and developments in the area of city representational standing. For the sake of brevity, I will not repeat here all the details of the normative case for city representational standing or all of the fine points about associational standing doctrine that map onto city structures and their relationships with their citizens. To those interested in the fuller consideration, I refer you to my initial essay[62] and the subsequent analysis by Professor Sarah Swan.[63]

B. A City Is Not an All-Purpose Litigant

    Recently, Professor Heather Elliott argued that municipal associational standing creates constitutional problems underrecognized in my prior article—essentially, it would risk granting too much standing.[64] As an initial matter, we appear to agree that associational standing plausibly creates an avenue for more city standing in federal court.[65] We have also both considered that courts may seek a limiting principle to avoid granting potentially broad municipal associational standing;[66] Professor Elliott, though, has helpfully identified one possible doctrinal framing for that risk.[67] She argues that allowing cities (and some other large, broad-purposed associations) to invoke broad associational standing is in “conflict” or at least “serious tension” with another important standing principle—the ban on “pure private attorneys general”[68] for whom Article III standing requirements impose no meaningful limit. She raises important questions about the limits of municipal associational standing and how we define who belongs in a city, a challenge I take up in part below. Ultimately, however, I find that concerns over the scope of city standing need not dash our hopes for responsibly applied municipal associational standing.

    The Supreme Court has generally said that private parties may not be pure private attorneys general—that is, they may not bring cases without having suffered a cognizable injury (or representing someone who has).[69] Professor Elliot contends that cities’ size (that is, the number of “members” from which a city might draw a harmed person to support standing) and broad array of municipal “purposes” combine under associational standing doctrine to make cities functionally unconstrained, nearly pure private attorneys general in a way that is inconsistent with Article III.[70]

    1. Membership: The Limits and Risks of Defining Who Belongs

        a. Who Counts as a Member?

    As noted above, where an entity is not organized as a membership organization, it may still invoke associational standing if, functionally, the “specialized segment” of the population that it serves “possess all of the indicia of membership in an organization.”[71] The Hunt Court identified several “indicia of membership”: the de facto members “alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of [a] lawsuit, through assessments levied upon them.”[72] Lower courts have added to or broadened these indicia, for example, adding the voluntariness of membership[73] and other accountability mechanisms between clients or members and the organization.[74] These cases suggest a somewhat flexible analysis, but one that strongly (and in some circuits, exclusively) centers on whether “members” can guide the association’s activities, comprise and select its leadership, and finance its work.[75]

    I concede that it is not intuitive to think of city residents as “members” of a city.[76] But intuition will not do as a substitute for careful comparison, and as I and others have noted, cities are legally, practically, and sometimes emotionally salient representatives of their residents.[77] “[C]ities ... are constituted by their obligation to respond to community concerns and to care for their residents”;[78] they exist almost exclusively to serve their residents, and their leaders are directly elected to that end. They are, at their core, agents of the public as a whole. Perhaps unsurprisingly, then, many people do affiliate with their hometowns and expect those places to protect them and pursue their best interests.[79] Indeed, Professor Sarah Swan has argued that bringing affirmative litigation to protect residents’ well-being can itself be part of a city’s “statebuilding” efforts—that is, the ways it constructs itself as a legitimate political entity and community.[80]

    But even if I am right, this does not fully answer Professor Elliott’s concerns; she rightly asks, who specifically, among those who live, work, or otherwise spend time there, is a city “member?”[81] That question has several parts.

            i. Better Together

    The first question is—at what level of generality will the court consider the question? Will it accept evidence that the city’s residents as a group exhibit the indicia of membership? Or will it require the specific individuals that the city claims are harmed (for purposes of showing that a member has Article III standing) to satisfy many or all of those indicators?

    This difference matters: if the city must identify individual residents who both satisfy all the indicia and suffer the relevant Article III injury, perhaps the pool from which even big cities can draw is smaller than we might first imagine. Worse, if that is the case, a city may be unable to protect significant portions of its population—especially those least able to protect themselves, as discussed at greater length below.

    Primarily, then, a city looking to invoke associational standing should vociferously frame the analysis as whether its residents collectively meet the standard—comprising, electing, and guiding city leadership, and financing municipal activity through taxes and fees. And, indeed, this collective approach seems the most consistent with Hunt: there, the Court did not, for example, focus on whether any particular grower relied on the association to represent its views regarding grading or interstate marketing.[82]

    A skeptical court, however, might require a city to show that the specific people on which it relies for Article III standing satisfy the Hunt indicia.[83] In that case, the analysis gets more challenging, and cities may be less able to invoke the interests of everyone in their communities.

            ii. Leadership Participation, Selection and Guidance

    City residents collectively select and direct their leadership as required by Hunt. If a court assesses membership at the city-wide level, a city can show that its residents both comprise and choose its leadership. Elected officials will at least generally be responsible for authorizing the suit and can be held to account by residents for it. Notwithstanding dismal rates of participation in municipal elections,[84] this level of community involvement surely exceeds that of many nonprofits that have been given associational standing.

    If a court rejects a community-level assessment, however, this criterion will narrow who counts as a member. On this more restrictive interpretation, “members” might only include those who can vote in the municipal elections most relevant to the suit (e.g., for the City Attorney, Mayor, or Board of Supervisors, depending on how the suit is authorized). And if membership is tied to voting eligibility, the relevant members would generally seem to be adult residents, and likely only U.S. citizens, depending on the city’s voting rules.[85] Members might also include participants of any relevant city advisory board or committee, but certainly will not include the entire city, if city residents are disaggregated for the purpose of the standing analysis.

            iii. Financing City Activity

    The question of whether members finance city activities is also fairly straightforward at the community level. It is true that cities derive funding from many sources, including the federal government,[86] in addition to their residents. However, Hunt appeared to focus on financing at least in substantial part because of its role in member accountability, so probably not all funding need come from members.[87] Moreover, many nonprofits and associations likewise receive at least some grant or other funding.[88] Generally, then, cities’ revenue schemes should favor a finding that residents are city members.[89]

    But again, things are slightly more complex at the individual-member level. Not everyone eligible to vote, for example, will pay much in taxes. Even where there is a local income tax, the poorest community members may have little income and owe no taxes. But if paying nothing satisfies their local tax obligations, they should still be construed as meeting this criterion—after all, other associations may offer free membership but request contributions or charge a membership fee on a sliding scale.[90]

    Even apart from income taxes, most residents pay into city coffers in some non-negligible way; they likely pay more in local sales taxes, parking and other municipal service fees than they would to be a member of many private associations.[91] The precise contours of this analysis will depend on the structure of local taxes and fees, but, if needed, showing that a city’s injured members contribute to the city budget should be straightforward in many cases.

            iv. Voluntary Association

    Some courts have considered voluntariness of participation to be a helpful but optional indicator of membership beyond Hunt’s listed few.[92] And although parts of local government law and theory have long centered on the notion that municipalities compete for residents, it would be a gross exaggeration to say that people can leave their cities as easily as they can quit, say, AARP.[93] Merely living and continuing to live in a city is no assurance of total voluntariness if one is practically or financially unable to move. Especially if the city must define members at the individual level, residence is an especially weak signal of voluntary membership.

    Even so, if this factor is anything, it is positive. Voluntariness is absolutely doctrinally optional, given that the membership in Hunt was legally mandated; a weak signal of voluntariness is thus perhaps a weak doctrinal plus.[94] At the end of the day, what cities may lack in voluntariness relative to other associations, they likely gain in (democratic) accountability, which is fundamental to the Hunt analysis.[95]

* * *

    All told, cities should argue that the indicia of membership should be analyzed at the community, rather than individual, level. They must also, however, be prepared to concretely identify who among their residents meet the indicia of membership relative to the suit in question. Though there may be some room to argue for additional indicia (like voluntariness) to factor into the analysis, cities should expect to have to show that they meet at least all or nearly all of the Hunt factors.

    It is undoubtedly true, as Professor Elliott notes, that big cities could have a deep pool of residents from which to identify injured members.[96] But it is possible (though, I think, misguided) that a court could decide to conduct the indicia of membership analysis focused just on those harmed individuals. This seems particularly likely if a city is relying on a harm to one or a very few of its residents. But as we have seen, a city is ill-advised invite such a tighter focus in the mine run of cases; such a narrow view of which members should “count” is not compelled by Hunt and seems less (not more) likely to lead to a grant of city standing in some cases.

        b. How Many Members Is Enough?

    The Supreme Court’s standing cases say that one member with an Article III injury suffices to support associational standing.[97] Despite the challenges outlined above, there may be a city that opts to pursue an associational case based on harms to just one resident. Even if that city successfully establishes the requisite Hunt indicia of membership, the city, especially if it is large, should expect judicial skepticism elsewhere in the associational analysis as well.[98] While the precise status of the various third-party prudential standing limitations in federal court remains unclear,[99] we can still expect courts to closely scrutinize a claim brought by a city of, say, nine million people to vindicate the interests of just one.

    Professor Elliott seems to view the number of potential “members” from which to identify an affected person and the number and breadth of municipal purposes as layers of weak limitation that combine to create an essentially meaningless restraint.[100] However, we might equally expect them to operate in tandem the opposite way. A court may, for example, be less willing to decide that a dispute is germane to a city’s purpose when the problem only affects a single resident; it might either discard the suit altogether as not germane or require the city to show an explicit state law giving it a very specific purpose or interest justifying the suit.

    2. Municipal Purposes Have Meaning, and Limits

        a. Municipal Purposes Are Set by State and Local Statutory, Regulatory, Constitutional, and Common Law

    Municipalities do a lot. Those many municipal powers and functions are largely determined by state statutory, constitutional, common, and local laws validly adopted pursuant to those powers.[101] Many, if not most, cities have at least some type of broad “police power” to protect the health and welfare of those within their jurisdiction, on top of myriad explicit responsibilities allocated by more specific state laws and regulatory schemes.[102] Just as scholars have argued when considering the breadth and diversity of states’ interests, however, the very fact that cities have so many different authorities and responsibilities does not lessen their obligations under, or commitments to, any of them.[103]

    How a city will prove that a given suit is germane to its purposes will vary by issue and case. Often, I expect, it will be by pointing to an eclectic mix of state and local law—in some cases, determined by state constitutional powers or unfunded state mandates; in others, by local ordinances. Those powers and duties, when matched to what a city is actually doing to help its residents, well support standing; in Hunt, after all, the Court returned to the impacts the Commission would suffer itself as reassurance that standing was appropriate.[104]

    City purposes, explained this way, are broad and varied, but do not cover the waterfront. The robust scholarship on federal and state preemption of local action itself suggests as much.[105] Moreover, the idea that city purposes are a category without meaningful boundaries discounts the fact that a city’s legal interest in an issue is a function of both power and process. Such a view ignores state-government actors’ pervasive structuring, monitoring, and editing of areas of local authority and discretion (including cities’ ability to litigate), to which a recent wave of scholarship regarding “hyper preemption” bears witness.[106] Nor is litigation an area where states hesitate to step in; indeed, some states opposing cities’ affirmative litigation have adopted laws specifically blocking certain kinds of city cases.[107]

    Professor Elliott, too, acknowledges that it is unlikely that municipal associational standing is so broad that a city could bring absolutely any suit it wished, and so the doctrinal friction she identifies is not an absolute conflict.[108] Even so, she argues, the conflict ought to be remedied “given the Court’s separation-of-powers rhetoric and the emphasis it has placed on a strict doctrine of standing,” and given that “it violates our ideas of the rule of law that courts would simultaneously prohibit and allow an action.”[109]

C. Municipal Associational Standing Is Manageable and Appropriate

    Professor Elliott has helpfully described the tension between the potentially numerous and varied cases in which a city could validly claim associational standing and the need to guard against unconstrained “pure private attorneys general.”[110] Looked at from a distance and in the abstract, the conceptual tension is indeed concerning. Looked at in the context of actual litigation, though, with demonstrated harms and specific municipal purposes affected by them, it becomes far less alarming.

    Consider a case in which a city invokes associational standing: it identifies a specific harm to its residents, shows that the harm affects the city’s own well-being, and articulates which of its local powers and responsibilities make that harm “germane” to a legitimate city “purpose.” The need to avoid creating a pure private attorney general will doubtless be raised by the defendant in an effort to defeat standing, and that need offers the court an outer limit to when it should validate city standing. Like any plaintiff, the city will have to convince the judge that its interests are real, substantial, and cognizable and that it is no roving enforcer of the law. This is the bread-and-butter stuff of a skilled litigator, though, and necessitates no doctrinal overhaul.

    There likely will be cases in which the connection between claim and city purpose is too attenuated to convince a court to read standing doctrine generously in the city’s favor. I doubt any of us will agree with every ruling on whether a city gets associational standing, as amply demonstrated by the differing attitudes of the Seventh and D.C. Circuits in City of Milwaukee v. Saxbe and City of Olmsted Falls v. FAA.[111] Given the range of acceptable outcomes in even a well-designed doctrine, however, the problem with Olmsted Falls is not the result—it is that the analysis is based on instincts about cities rather than a careful consideration of the state law that constructs what a city is “for.”

    There is, in sum, no great need to dispense with municipal associational standing to avoid creating thousands of pure private attorneys general. No judge will ever have to decide which doctrine wins out—only where on the spectrum of interests, from directly injured to freewheeling private attorney general, the city’s role in a particular case lies. But the ordinary filtering processes of litigation are more than up to the task of addressing edge cases where a city might push too far; we need not discard an entire avenue of standing to guard against that risk.

III. Pathways to City Standing

    It is worth pausing here to consider the stakes of this debate. Does it matter, really, whether a city can bring a representational case in federal court?[112] In practice, there are relatively few cases—especially against private parties—in which a city’s case really needs to be in federal court,[113] and cities can often get around a lack of federal standing by, for example, partnering with a nonprofit whose standing is more certain[114] or bringing the case in state court. There will be some cases where it matters, of course: for example, if a city wants to sue the federal government,[115] invoke certain federal statutes, or to intervene in litigation to seek different or better relief for its residents.[116] But in most representational suits it will not.

    In that sense, the potentially greater risk posed by federal cases that limit city standing is that the rationale of those cases may be contagious. Enough state courts follow federal standing precedents that such logic may spread back into state court—where cities should have the best shot at a good, hard look at city interests pursuant to state law.[117] It is worth it, then, to encourage federal courts to do a better job of accounting for cities in standing doctrine, particularly where it can impact city residents’ access to justice vel non.[118]

    So, how federal courts treat city standing matters. Given that, even if associational standing is one route to federal court, we should examine all avenues to get cities there. Standing doctrine generally has long been criticized as messy, irrational, ahistorical, and even misleading.[119] And despite late Justice Scalia’s attempt in Lexmark to clarify parts of prudential standing,[120] I share others’ skepticism that a wholesale rationalization of standing doctrine is on the near horizon.[121] Certainly, it seems that a clear, predictable standing mechanism for cities to bring representational cases would be preferable to current affairs. In that spirit, let us briefly consider other recent proposals for modest reforms to bring cities reliably and successfully into federal court, and how they might compare with municipal associational standing.

A. Statutory Enforcement Power

    Professor Kathleen Morris, among others, argues that the best way to let cities bring impact cases is to give them statutory enforcement authority (especially in consumer protection laws).[122] With this approach, cities generally need not build huge factual records to support standing, harm, and causation; instead, the case focuses on whether the defendant’s conduct is lawful.[123]

    This is by far the tidiest resolution, where the legislators are willing, and the harm is covered by statute. It should be sought whenever possible, particularly in public rights laws. Interesting federalism questions arise when the federal government directly empowers a city,[124] but enforcement authority should be broadly sought in both federal and state statutes. Absent legislative cooperation, though, and for harms not covered by statute, other broad, flexible standing theories will still be required.

B. A Return to Parens Patriae

    Professor Eli Savit recently argued for individual states to remedy standing gaps by expressly delegating to cities parens patriae authority to sue.[125] The Supreme Court has not allowed states to delegate their sovereign interests to just any private party, instead concluding (on one reading, anyway) that each state is free to choose which of its officials or true agents may represent its interests in court.[126] Accordingly, to benefit from delegated parens patriae authority, a city must define itself to the court as merely an arm or agent of the state.[127] That description of local power is persuasively contested as a practical and doctrinal matter and as a matter of state constitutional law and history,[128] but may present distinct advantages in practical terms for establishing standing in federal court under current doctrines.[129]

    Delegated parens patriae reverses the challenges and strengths of associational standing. The city would have to emphasize its public rather than its corporate attributes in litigation.[130]Parens patriae standing more closely matches our intuitions about cities, but would require an express, litigation-directed delegation from the state to overcome the weight of precedent holding that being an arm of the state prevents rather than enables cities’ exercise of parens patriae standing.[131] Of course, one could argue that, even absent an explicit delegation, when states share some of their caretaking and governing interests by giving cities autonomy (or by enmeshing them in a state-local governance framework), a corresponding portion of the state’s parens patriae power should follow. Unfortunately, courts have often, though not always,[132] been unmoved by similar claims. An express delegation in some form is, therefore, probably required for success.

    Professor Savit’s proposal, therefore, is contingent on support from state-level actors. It is likely more attainable than state statutory standing, however, as it can require support from fewer actors: Professor Savit argues that the delegation could come either as a statute or unilaterally from an attorney general.[133] It is thus more politically dependent than a claim of associational standing, though less so than statutory standing. Conversely, if adopted by a unilateral (and presumably revocable) delegation, it may be less durable than statutory standing, but likely more reliable than associational standing, at least as the doctrine currently stands.

C. A Unified Theory of Standing for Organizations

    Professor Katherine Mims Crocker’s recent work on state representational standing suggests another intriguing alternative.[134] Highlighting the similarities between parens patriae and associational standing and between standing for state proprietary and private organizational economic harms, she argues that courts could unify all of these doctrines under the general umbrella of organizational standing.[135] Professor Crocker argues that the parallels between the doctrines should make us more comfortable with the seemingly broad and ill-defined standing that states have in federal court.[136] I would argue that such a unified approach to standing for organizations of all stripes should similarly increase comfort with broad local standing under either theory.[137]

    Professor Elliott has noted that this approach does nothing to ameliorate her concerns with potentially broad municipal standing.[138] But that objection misses the mark. Professor Crocker has offered an avenue for us to clearly define and articulate the differences between public and private associations as litigants and pinpoint precisely where in the standing doctrine those differences matter. If we avail ourselves of that opportunity, we will have a better way to account for standing for cities—potentially a way that accounts for their complicated public-but-not-sovereign nature.[139] Given an integrated theory of standing for public and private associations, the ban on private attorneys general seems even less sensibly to apply to cities.


    People matter to their cities, and cities often matter to their people. Recent trends nationally show that local voices remain urgently needed to speak up for their residents, even as trends also show a mounting hostility to local impact litigation and standing. Cities will often hurt—albeit somewhat differently—when their residents do, and so have every reason to speak directly to both of those harms. Representational standing doctrines in federal court need not ignore that connection.

    Our current structure for public protection litigation contains too little redundancy to withstand changes in circumstance and politics at state and federal levels, and as a result important public rights and norms go underenforced.[140] Adopting and recognizing a stable form of municipal representational standing and situating it clearly within the broader universe of representational standing, would afford the public additional assurance that someone can speak up for it. Although the mixed nature of the case law means that the question is hardly free from doubt, associational standing can and should remain a viable option for allowing cities to do just that.

1See generally, e.g., Kathleen S. Morris, Cities Seeking Justice: Local Government Litigation in the Public Interest, in How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality 189 (Ray Brescia & John Travis Marshall eds., 2016).

2. Kathleen S. Morris, San Francisco and the Rising Culture of Engagement in Local Public Law Offices, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy: Papers from the Eleventh Annual Liman Colloquium at Yale Law School 51, 54 (2008), LocalMatters.pdf [].

3. Kaitlin Ainsworth Caruso, Associational Standing for Cities, 47 Conn. L. Rev. 59, 61 (2014).

4See, e.g., Sarah L. Swan, Plaintiff Cities, 71 Vand. L. Rev. 1227, 1252-53 (2019) (“Standing presents the biggest doctrinal hurdle of legal legitimacy for plaintiff cities.”); Kathleen C. Engel, Do Cities Have Standing? Redressing the Externalities of Predatory Lending, 38 Conn. L. Rev. 355, 389-90 (2006).

5. Impact litigation “seek[s] to use the courts to effect widespread social changes.” Peter H. Schuck, Meditations of a Militant Moderate: Cool Views on Hot Topics 103 (2006).

6. That trend has not been universally welcomed. See generally, e.g., Ann Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L. Rev. 2015 (2019).

7. Caruso, supra note 3, at 68-69, 68 nn. 50-52, 69 nn. 53-54.

8. “Associational standing” is sometimes called “organizational standing.” Both terms, confusingly, are sometimes used to describe the standing of an organization or association both when it is directly injured and when it bases standing on the injury to one of its members. See, e.g., Swan, supra note 4, at 1256 & n.182. This Essay concerns the latter, representational theory.

9See Kaitlin A. Caruso, The Municipal Corporation, Revisited: Rationalizing the Law of Cities After Hunter v. Pittsburgh, Harv. C.R.-C.L. L. Rev., nn.8-16 and accompanying text (July 11, 2012), tional-enforcement/ [] (sketching the possibility of municipal associational standing); accord Josh Bendor, Municipal Constitutional Rights: A New Approach, 31 Yale L. & Pol’y Rev. 389, 420 & n.214 (2013).

10See generally Jill E. Habig & Joanna Pearl, Cities as Engines of Justice, 45 Fordham Urb. L.J. 1159, 1163-65 (2018); Morris, supra note 1, at 189-90.

11. In this Essay, I use “cities,” “counties,” and “municipalities” interchangeably; I focus on general-purpose municipal entities, as distinct from special-purpose sub-state entities like, say, a water district.

12See Sarah L. Swan, Preempting Plaintiff Cities, 45 Fordham Urb. L.J. 1241, 1258-59 (2018). See generally Nino C. Monea, Cities v. Big Pharma: Municipal Affirmative Litigation and the Opioid Crisis, 50 Urb. Law. 87 (2019).

13See, e.g., Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1300-01 (2017).

14. Nina A. Mendelson, Tribes, Cities, and Children: Emerging Voices in Environmental Litigation, 34 J. Land Use & Env’t L. 237, 243-44 (2019).

15. Dino Grandoni & Brady Dennis, States and Cities Sue EPA Over Rollback of Climate Regulations Aimed at Coal Plants, Wash. Post (Aug. 13, 2019, 3:14 PM), []; Chicago and 3 Other Cities Sue to Stop Spread of Ghost Guns, Associated Press Wire Serv. (Aug. 26, 2020), [].

16See Morris, supra note 1, at 189; Swan, supra note 4, at 1230-31.

17Compare Grandoni & Dennis, supra note 15, with Swan, supra note 12, at 1258-59, and Daniel Fisher, Cities vs. States: A Looming Battle for Control of High-Stakes Opioid Litigation, Forbes (Mar. 28, 2018, 10:30 AM), [].

18See, e.g., Heather Elliott, Associations and Cities as (Forbidden) Pure Private Attorneys General, 61 Wm. & Mary L. Rev. 1329 (2020); Eli Savit, States Empowering Plaintiff Cities, 52 U. Mich. J.L. Reform 581 (2019); Swan, supra note 4; Kathleen S. Morris, Expanding Local Enforcement of State and Federal Consumer Protection Laws, 40 Fordham Urb. L.J. 1903, 1908 (2013) [hereinafter Morris, Expanding Local Enforcement]; Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 Harv. C.R.-C.L. L. Rev. 1, 4-5 (2012) [hereinafter Morris, Local Constitutional Enforcement]; Engel, supra note 4, at 389; Claire McCusker, Comment, The Federalism Challenges of Impact Litigation by State and Local Government Actors, 118 Yale L.J. 1557 (2009).

19. U.S. Const. art. III, § 2.

20. United States v. Windsor, 570 U.S. 744, 757 (2013) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016) (requiring harm to be both concrete and particularized).

21Windsor, 570 U.S. at 757 (alteration in original) (quoting Lujan, 504 U.S. at 560-61); see also Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 180-81 (2000).

22. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

23. Engel, supra note 4, at 369-70.

24. 134 S. Ct. 1377 (2014).

25Id. at 1386-87, 1387 n.3.

26Id. at 1387 n.3. One view, however, is that third-party standing issues can now “be handled as issues primarily of Congress’s intent with respect to particular statutory schemes.” Ernest A. Young, Prudential Standing After Lexmark International, Inc. v. Static Control Components, Inc., 10 Duke J. Const. L. & Pub. Pol’y 149, 154-55 (2014).

27. Starr Int’l Co. v. United States, 138 S. Ct. 1324 (2018) (denying certiorari).

28. Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1301 (2017).

29Id. at 1301-02.

30Id. at 1303. Unfortunately for the City, the Court then remanded with instructions to impose a heightened causation standard. Id. at 1301, 1305. On remand, the Eleventh Circuit concluded that the City adequately pled causation for its claims of lost tax revenue, but not for increased municipal expenses. City of Miami v. Wells Fargo & Co., 923 F.3d 1260, 1263-65 (11th Cir. 2019); accord City of Oakland v. Wells Fargo & Co., 972 F.3d 1112, 1117 (9th Cir. 2020) (ruling similarly in Oakland’s suit).

31Bank of Am., 137 S. Ct. at 1304.

32See id. at 1304-05 (citing Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979)).

33. Seth Davis, The Private Rights of Public Governments, 94 Notre Dame L. Rev. 2091, 2105 (2019) (noting that it is good strategy to characterize financial injuries as proprietary harms because “[a] ‘Wallet Injury’ is the ‘paradigmatic’ injury in fact,” but suggesting that the typical analysis of such a state injury is oversimplified (first quoting Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 619 (2007) (Scalia, J., concurring in the judgment); and then quoting Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005))).

34. Or entities like states, e.g., Puerto Rico.

35See Alfred L. Snapp & Son, Inc., v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-02 (1982) (discussing states’ different interests). Governments may also litigate on behalf of a private real party in interest, but the Court deems such actions essentially private suits. Id. at 602.

36Id. at 601-02.

37Id. at 601.

38Id. at 602, 607.

39Id. at 600-01; see also Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 Va. L. Rev. 2051, 2072-74, 2082 (2011) (identifying ongoing muddiness in the case treatment of state interests for standing analyses).

40. Engel, supra note 4, at 368; see Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387-88, 1387 n.3 (2014) (explaining that the zone-of-interests test is a measure of the cause of action).

41. Massachusetts v. EPA, 549 U.S. 497, 520 (2007). It is not clear that broad standing for states has historically been the norm, however. See Woolhandler & Collins, supra note 6, at 2019-20.

42See Caruso, supra note 3, at 66-68; see also Ernest A. Young, State Standing and Cooperative Federalism, 94 Notre Dame L. Rev. 1893, 1922 (2019) (arguing that the “special solicitude” really only offered Massachusetts extra latitude regarding the “traceability and redressability” prongs of standing analysis).

43See Caruso, supra note 3, at 66-68.

44See id. at 68-69, 69 nn.53-55.

45See id. at 69-70, 70 n.56; see also, e.g., United States v. Walker River Irrigation Dist., No. 3:73-cv-00128-RCJ-WGC, at *6-8 (D. Nev. May 28, 2015) (CaseText) (denying a county parens patriae standing).

46See, e.g., Kathleen S. Morris, Rebellious Localism (forthcoming 2021) (on file with author) (manuscript at 39-44) (noting that under the constitutions of a supermajority of states, the people and not the state government are sovereign, and arguing that that shorthand way of describing state and local power—by focusing on state or local government entities rather than as state and local-level agents of a sovereign populace, or how the work of governance operates in practice— contributes to distorted and misleading understanding of federal-state-local relationships); Heather K. Gerken, Federalism 3.0, 105 Calif. L. Rev. 1695 (2017); Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 Yale L.J. 1920 (2014); Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007).

47Cf. Aziz Z. Huq, State Standing's Uncertain Stakes, 94 Notre Dame L. Rev. 2127, 2137 (2019) (“Given the mutable and elusive nature of sovereignty as a conceptual matter, it was probably inevitable that any effort to create a doctrinal rule for state standing rooted in that concept would generate confusion and instability. As a result, even if the notion of ‘sovereignty’ can provide a comforting verbal touchstone for analysis of state standing, it is unlikely to shed any meaningful analytic clarity on the matter.” (footnote omitted)).

48See, e.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1197-98 (9th Cir. 2004) (noting that a municipality’s “proprietary interests” include “its ability to enforce land-use and health regulations,” tax, and protect natural resources); New Mexico v. McAleenan, 450 F. Supp. 3d. 1130, 1188 n.15 (D.N.M. 2020) (in a city and state’s challenge to a federal policy that sent the city hundreds of “unassisted asylum seekers” weekly, denying the city parens patriae standing but finding standing based on “harm to the city itself” in its obligation to protect residents from “health and safety crises.”). For an excellent discussion of the deceptive complexity of a state’s “proprietary” interests, see Seth Davis, supra note 33. As some scholars have noted, however, public corporations like cities may often be subjected to a narrower vision of their rights even than their private counterparts, despite their broad responsibilities. See, e.g., Hannah J. Wiseman, Rethinking Municipal Corporate Rights, 61 B.C. L. Rev. 591 (2020); Richard C. Schragger, When White Supremacists Invade a City, 104 Va. L. Rev. Online 58, 70 (2018) (“So too the public/private distinction makes it difficult for a city qua city to assert that private actors are threatening its peace and security.”).

49See supra notes 8-9 and accompanying text.

50. 432 U.S. 333 (1977).

51Id. at 343.

52Id. at 344-45.


54Id. at 345 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

55See Caruso, supra note 3, at 74-75.

56See id. at 75-78.

57Hunt, 432 U.S. at 345.

58. Caruso, supra note 3, at 77-78.

59See id. at 81-82.

60See id.

61See id. at 80-81.

62. Caruso, supra note 3.

63. Swan, supra note 4.

64. Elliott, supra note 18, at 1333-34.

65Id. at 1381 (“Hunt permits at least some, and perhaps many, organizations and municipalities to act as nearly pure private attorneys general.”).

66See Caruso, supra note 3, at 82.

67See Elliott, supra note 18, at 1333.

68Id. at 1333-35, 1380. Analogous concerns have recently been raised about state standing—that applying standing tests meant for private litigants to states results in too much standing. See, e.g., Woolhandler & Collins, supra note 6, at 2023-24, 2028-29. I find these arguments interesting but unpersuasive; the number of an entity’s otherwise-valid interests should not trigger special rules to keep them out of court.

69. Elliott, supra note 18, at 1333; see Sierra Club v. Morton, 405 U.S. 727, 736-39 (1972) (noting that public interest cases still require cognizable injury, as do organizations, as “a mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to” establish a claim under the APA).

70See Elliott, supra note 18, at 1366-67, 1378-79 (“[B]ecause associations have standing wherever their members have standing, associations may base their standing on the risks that their members face.... That organization will thus be able to satisfy Hunt if it can satisfy the germaneness prong; the broader the organization’s purpose, the more likely it will have associational standing.”). She concedes that cities are not exactly “private” attorneys general. See id. at 1371 n.242, 1378 (describing a litigating city as a pure “private” attorney general “at least in the sense that it is not the attorney general of the United States” or a state). It suffices for present purposes to treat them as such, as I have largely argued that cities must be prepared to invoke associational standing on the same footing as any private entity. But as Professor Young observed of state standing, while Justices and critics complain of “private attorneys general” and class counsel as unaccountable, governments suing for their citizens are not. Young, supra note 42, at 1923-24.

71. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977).

72Id. at 344-45; cf. AARP v. EEOC, 226 F. Supp. 3d 7, 17-18 (D.D.C. 2016) (noting the limited extent to which members generated the AARP’s budget and controlled its activities but finding that sufficient for standing for the membership organization). See generally Katherine Mims Crocker, An Organizational Account of State Standing, 94 Notre Dame L. Rev. 2057, 2075-77 (2019) (arguing that states meet the indicia of membership).

73. Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997) (treating this indicator as helpful, though obviously not required in light of Hunt).

74. Or. Advoc. Ctr. v. Mink, 322 F.3d 1101, 1110-12 (9th Cir. 2003) (granting standing based on other indicia, where a protection and advocacy organization was not funded by client/members and they did not exclusively control the organization or comprise its board). But cf. Disability Advocs., Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 157-58 (2d Cir. 2012) (noting split of authority over whether such organizations qualify).

75See, e.g., Am. Legal Found. v. FCC, 808 F.2d 84, 90-91 (D.C. Cir. 1987) (rejecting standing). Compare NAACP v. Harris, 567 F. Supp. 637, 640 (D. Mass. 1983) (allowing standing on behalf of the NAACP’s historic “constituency” as distinct from its membership, notwithstanding the indicia), with Hope, Inc. v. County of DuPage, 738 F.2d 797, 814-15 (7th Cir. 1984) (refusing to extend standing based on injuries to a constituency rather than members).

76See Elliott, supra note 18, at 1373; see also City of Olmsted Falls v. FAA, 292 F.3d 261, 267-68 (D.C. Cir. 2002) (rejecting the idea that cities have voluntary members, asserting that the City was simply “attempting to assert the alleged interests of its citizens under the doctrine of parens patriae”); Prince George’s County v. Levi, 79 F.R.D. 1, 5 (D. Md. 1977) (similar).

77See Caruso, supra note 3, at 77.

78. Mendelson, supra note 14, at 256.

79See id.

80. Swan, supra note 4, at 1284-85.

81. Elliott, supra note 18, at 1373-76.

82See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343-44 (1977).

83See, e.g., Wash. Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 209-11 (D.D.C. 2007) (examining the named individuals’ indicia of membership in the litigating organization).

84. A research team at Portland State University compared voting rates in local elections across cities and concluded that local voting rates are “abysmally low.” See Carson Gorecki, Stephanie Hawke, Phil Keisling, Jason R. Jurjevich, & Kevin Rancik, Who Votes for Mayor?, Urb. Stud. and Plan. Fac. Publ’ns and Presentations (2016), [].

85. Wiseman, supra note 48, at 647, 649 (noting that “some municipalities ... allow noncitizens and sixteen-year-old[s] ... to vote” and that cities “generally only speak for the voting residents within their boundaries,” though some states allow municipalities to let nonresidents vote on some issues).

86See, e.g., The City of New York Office of the Comptroller, Preliminary Comptroller Analysis: Federal Funding and New York City’s Budget (2016), [].

87See, e.g., Or. Advoc. Ctr. v. Mink, 322 F.3d 1101, 1110-11 (9th Cir. 2003) (granting associational standing despite the protection and advocacy system’s receiving most of its funding from the federal government.).

88See, e.g., id.

89. Non-residents, even if taxpayers, are unlikely to be members in many cases: for example, a commuter who pays commuter taxes and local sales taxes on purchases she makes there will for most purposes still not count. Cf. Elliott, supra note 18, at 1375 (asking whether commuter-taxpayers will count).

90Cf. AARP v. EEOC, 226 F. Supp. 3d 7, 17 (D.D.C. 2016) (“Members play a role in financing AARP's activities ... through the payment of membership dues, although ... not all AARP members are required to pay dues, as some members’ dues are included in a spouse’s membership.”).

91. Particular thanks to Jill Habig for pressing me on this point.

92See, e.g., Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997).

93See Caruso, supra note 3, at 76 & nn.94-95 (noting that the idea of competing for residents has pervaded local government cases and scholarship and the controversy over how voluntary these associations really are); Elliott, supra note 18, at 1374 n.260 (noting that the assumptions about voluntariness and exit options may be far less realistic for poorer and lesser-advantaged residents of a community).

94See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 345 (1977) (“Nor do we find it significant in determining whether the Commission may properly represent its constituency that ‘membership’ is ‘compelled’ in the form of mandatory assessments.”).

95Cf. Wiseman, supra note 48, at 650 (“[M]unicipalities arguably provide more opportunities for members to voice objections, whereas shareholders can arguably more easily exit a traditional corporation than a municipality.”).

96See supra note 70 and accompanying text.

97See, e.g., Warth v. Seldin, 422 U.S. 490, 511 (1975).

98See, e.g., Telecomms. Rsch. & Action Ctr. v. ALLNET Commc’n Servs., Inc., 806 F.2d 1093, 1095-96 (D.C. Cir. 1986); Action All. for Senior Citizens of Greater Phila. v. Shapp, 400 F. Supp. 1208, 1213 (E.D. Pa. 1975) (granting standing to seek injunctive relief to benefit 6 of 3,500 members, but noting that “we might feel more confident of [the association's] taking a vigorous, adversarial stance had plaintiff been able to identify more members adversely affected by the Act”).

99See supra notes 22-27 and accompanying text.

100See Elliott, supra note 18, at 1378-80.

101See Caruso, supra note 3, at 81-82.

102See id. at 81-82, 82 n.123.

103See Young, supra note 42, at 1902 (“[S]tate litigants engage in a broader range of activities than most plaintiffs. But ... the burden should be on opponents of state standing to explain why those differences are relevant to the basic principles of Article III.”); Crocker, supra note 72, at 2072 (“[T]he fact that states’ proprietary interests are so diffuse that a host of federal-government actions could cause them injuries does not make those injuries generalized grievances.”). But cf. Woolhandler & Collins, supra note 6, at 2024 (expressing concerns that states have nearly limitless interests that, if injured, could support standing).

104. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 345 (1977). Whether those efforts could give rise to standing under other theories is beyond the scope of this Essay. Cf., e.g., Cook County v. McAleenan, 417 F. Supp. 3d 1008, 1018 (N.D. Ill. 2019) (relying on City of Milwaukee v. Saxbe, 546 F.2d 693 (7th Cir. 1976), to conclude that a municipality can claim standing under the diversion of resources theory of organizational standing).

105See, e.g., Swan, supra note 12.

106See, e.g., Erin Adele Scharff, Hyper-Preemption: A Reordering of the State-Local Relationship?, 106 Geo. L.J. 1469, 1473 (2018).

107. Savit, supra note 18, at 589-93 (noting that states preempt affirmative city litigation through direct legislation, by preempting local regulation that could support enforcement suits, and through their own litigation); Swan, supra note 12, at 1246-56 (discussing state preemption of city litigation through examples of preclusive settlements, litigation, and legislation).

108. Elliott, supra note 18, at 1392 (acknowledging that the issue “may be [just] short ... of a true conflict” such that it “need not be fixed”).

109Id. at 1393 (footnote omitted). Professor Fred Smith has recently and persuasively argued, however, that the increasing constitutionalization of prudential standing principles in fact stifles Congress’s ability to play its constitutional part in defining the role of the courts. See Fred O. Smith, Jr., Undemocratic Restraint, 70 Vand. L. Rev. 845, 878 (2017). That debate well exceeds the scope of this Essay. However, it bears noting that Professor Smith’s work suggests, at least, that the strict notions of standing to which Professor Elliott refers are not an automatic constitutional good.

110. Elliot, supra note 18, at 1333-35; see supra notes 64-70 and accompanying text.

111Compare City of Milwaukee v. Saxbe, 546 F.2d 693, 698-99 (7th Cir. 1976), with City of Olmsted Falls v. FAA, 292 F.3d 261, 267-68 (D.C. Cir. 2002).

112Cf. Caruso, supra note 3, at 97 (rejecting the idea that city suits belong just in state court).

113See generally Robert A. Mikos, Standing for Nothing, 94 Notre Dame L. Rev. 2033 (2019) (arguing that states rarely actually need standing in federal court to protect their own laws).

114See Caruso, supra note 3, at 71.

115. Some have understandably expressed concern about the trend toward resolution, and constitutionalization, of federal politics and policy through federal litigation. See, e.g., Ernest A. Young, supra note 42, at 1918-21. Even if this is a problem, however, a unique disadvantage imposed upon cities relative to other parties hardly seems like the solution. Cf. id. at 1919-20 (making a parallel point regarding state standing). Suits against the federal government, like suits against a city’s own state, will present federalism challenges that may require issue-by-issue consideration.

116See Town of Chester v. Laroe Ests., 137 S. Ct. 1645, 1648 (2017).

117See, e.g., Coldsprings Township v. Kalkaska Cnty. Zoning Bd. of Appeals, 755 N.W.2d 553, 556 (Mich. Ct. App. 2008) (following federal standing analysis in Olmsted Falls and rejecting associational standing); Tuma v. Kerr County, 336 S.W.3d 277, 281 (Tex. Ct. App. 2010) (rejecting without analysis the notion of a county as an “association of individuals” given standing by statute).

118See generally Habig & Pearl, supra note 10, at 1162-65.

119See Elliott, supra note 18, at 1334-35, 1334 n.17.

120See supra notes 24-26 and accompanying text.

121. Elliott, supra note 18, at 1383-85.

122See Morris, Expanding Local Enforcement, supra note 18, at 1907-08; Morris, supra note 1, at 203.

123See Morris, supra note 1, at 203.

124See Morris, Expanding Local Enforcement, supra note 18, at 1926-27; Morris, Local Constitutional Enforcement, supra note 18, at 6-7, 43 (objecting as a constitutional and historical matter to the idea of state plenary control of city powers and noting one theory of federalism that would exclude federal involvement in state-local relationships); Davidson, supra note 46, at 960-61; Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures' Control, 97 Mich. L. Rev. 1201, 1201 (1999) (analyzing whether “the federal government [must] take state institutions as it finds them, or can ... expand these institutions’ powers even in the teeth of state laws that seem to” preclude such an expansion); Bendor, supra note 9, at 421-22 (arguing that federal supremacy allows federal delegations of powers to cities even over state objections).

125. Savit, supra note 18, at 608-09.

126Cf. United States v. Walker River Irrigation Dist., No. 3:73-cv-00128-RCJ-WGC, at *6 (D. Nev. May 28, 2015) (CaseText) (“The Idaho Supreme Court has ruled that a state statute providing county prosecutors with the duty to ‘prosecute or defend all actions ... in the district court of his county in which the people, or the state, or the county, are interested’ provides county prosecutors with standing to assert the public’s right to recreation on private land. Because municipalities are not sovereign, however, absent such a statute explicitly providing standing, they cannot bring parens patriae suits on behalf of their residents.” (citation omitted)). Compare Hollingsworth v. Perry, 570 U.S. 693, 712-13 (2013) (concluding that delegating a state’s interest in the enforceability of its law was not enough to confer standing on a private party absent a proper agency relationship or an otherwise cognizable injury), with id. at 715-17 (Kennedy, J., dissenting) (debating this point).

127. Savit, supra note 18, at 609-10.

128See, e.g., Morris, Local Constitutional Enforcement, supra note 18, at 32-34.

129. Caruso, supra note 9; see also Morris, Local Constitutional Enforcement, supra note 18, at 37 (“[A] legal rule that undermines [local] autonomy might simultaneously enhance [local] power, and vice versa.”).

130. That is to say, a city would have to emphasize its identity as an “arm of the state,” rather than as analogous to other corporate organizations or associations, to gain standing. Cf. Caruso, supra note 9 (suggesting the advantages of emphasizing municipalities’ corporate natures, including in standing).

131See supra notes 44-45 and accompanying text.

132See In re Del. Pub. Schs. Litig., 239 A.3d 451, 520-21 (Del. Ch. 2020) (recognizing that, under Delaware law, a city had parens patriae standing to sue on behalf of its residents due to its home rule authority).

133. Savit, supra note 18, at 611-12.

134. Crocker, supra note 72.

135See id. at 2070.

136See id. But cf. Seth Davis, supra note 33, at 2121-23 (arguing that state representational cases may justify special disfavor or special solicitude in federal court).

137. Crocker and Elliott seem to agree that if localities can invoke associational standing, they have an advantage over states invoking parens patriae because the latter requires harm to a substantial portion of residents while the former needs only a single injured member. See Elliott, supra note 18, at 1376 (first citing Crocker, supra note 72, at 2079-80; and then citing Margaret H. Lemos & Ernest A. Young, State Public-Law Litigation in an Age of Polarization, 97 Tex. L. Rev. 43, 112-13 (2018)). As noted above, it is not clear that a court would find such a case germane to city purposes, see supra note 100 and accompanying text, nor is a city likely to commit resources to such a case. Moreover, as Crocker notes, it is not clear whether the multiple affected residents under parens patriae must have an Article III injury; it could be that the standards have offsetting advantages, requiring, respectively, fewer members with Article III injuries versus more members with more abstract harms. See Crocker, supra note 72, at 2078-79.

138. Elliott, supra note 18, at 1376 n.266.

139. This approach is different from the more pragmatic recommendation that I have made previously regarding the advantages to cities of embracing their identities as corporations rather than arguing for status as mini-sovereigns. See Caruso, supra note 9. I maintain that under present doctrine, cities are and should be able to claim associational standing on fundamentally the same terms as other associations. However, Professor Crocker’s taxonomy, if it produces a refined standing doctrine that encompasses both associational and parens patriae standing, might be able to create space for cities to claim standing based on the fullness of their interests, simultaneously “public” and “private.”

140. Habig & Pearl, supra note 10, at 1162-65, 1187-88.


* Kaitlin Ainsworth Caruso is a former Fellow and Lecturer at Yale Law School and has worked in state and local consumer protection and civil rights. J.D. 2010, Yale Law School. The opinions in this Essay should not be ascribed to any current or former employer. Many thanks to Jill Habig, the Public Rights Project, and Kathleen Morris for helpful comments and contributions to this Essay and for ongoing discussions of local government power and capacity. Many thanks to the dedicated staff of the William & Mary Law Review Online. All errors are my own.