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91 Denver L. Rev. F. 1 (2013-2014)

handle is hein.journals/dnvrlwfv91 and id is 1 raw text is: ENDING TAX REVENUE STANDING JUSTIN PIDOTT AND MEGAN MOSES* INTRODUCTION States often act to protect those that live within their borders by passing laws and regulations, enforcing criminal codes, and providing social services. On occasion, they also file suit in federal court to vindi- cate their residents' rights. Just like private plaintiffs, states must prove standing pursuant to case law interpreting Article III of the Constitution.' But states also stand apart from traditional plaintiffs. The Supreme Court has instructed that states receive special solicitude, entitling them to a degree of leeway in asserting standing.2 Federal courts also allow states to sue as parens patriae-meaning that they can sue to protect the welfare of their resi- dents-even when they are not directly injured.3 And courts sometimes allow states to sue because of claimed threats to their tax base,4 a theory this essay terms tax revenue standing. Having named the theory, this essay argues that tax revenue stand- ing should be eliminated. Every loss of tax revenue can be described as an injury falling within the parens patriae doctrine, and every injury falling within the parens patriae doctrine implicates tax revenue. The redundancy and inefficiency of two theories with precisely the same ef- fect justifies abolishing tax revenue standing. But there is more. On oc- casion, states invoke tax revenue standing to avoid the rule that states may not sue the United States as parens patriae.5 Because the equivalen- cy between the two doctrines remains unacknowledged, those states may yet succeed. I. PARENS PATRIAE STANDING Federal courts traditionally disfavor lawsuits brought by one party on behalf of another. These suits are usually dismissed for lack of stand- ing because the plaintiff is not herself injured.6 Federal courts do recog- nize an exception for states, called the parens patriae doctrine, which allows states to litigate in circumstances where private parties cannot. T Assistant Professor, University of Denver Sturm College of Law. * Juris Doctor candidate 2014, University of Denver Sturm College of Law. 1. See Massachusetts v. EPA, 549 U.S. 497, 516-17 (2007). 2. Id. at 520. 3. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982). 4. Wyoming v. Oklahoma, 502 U.S. 437 (1992). 5. See, e.g., Wyoming v. U.S. Dep't of Interior, 674 F.3d 1220 (10th Cir. 2012). 6. See Singleton v. Wuff, 428 U.S. 106, 113-14 (1976). 1

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