Article III, Section 2, Clause 1:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The right of a state to sue as parens patriae, in behalf of its citizens, has long been recognized.1 No state, however, may be parens patriae of its citizens
as against the Federal Government.2 But a state may sue to protect the its citizens from environmental harm,3 and to enjoin other states and private parties from engaging in actions harmful to the economic or other well-being of it citizens.4 The 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;5 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, although there are suggestions that the restrictive definition grows out of the Court's wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts.6
The distinction between suits brought by states to protect the welfare of their citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,7 the state was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,8 a closely divided Court accepted a suit by the state, suing as parens patriae and in its proprietary capacity—the latter being treated by the Court as something of a makeweight—seeking injunctive relief against 20 railroads on allegations that the rates were discriminatory against the state and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a state for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but rather
embrace the so called ‘quasi-sovereign’ interests which . . . are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.’9
Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest the development of a state and put it at a competitive disadvantage.
Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.10
The continuing vitality of this case is in some doubt, as the Court has limited it in a similar case.11 But the ability of states to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court's original jurisdiction such suits are not in favor.12
One clear limitation had seemed to be solidly established until later litigation cast doubt on its foundation. It is no part of a state's
duty or power, said the Court in Massachusetts v. Mellon,13
to enforce [its citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the state that represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status. But, in South Carolina v. Katzenbach,14 while holding that the state lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 196515 under the Fifth Amendment's Due Process Clause and under the Bill of Attainder Clause of Article I,16 the Court decided on the merits the state's claim that Congress had exceeded its powers under the Fifteenth Amendment.17 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion that is contrary to a number of supposedly venerated cases?18 Either possibility would be significant in a number of respects.19