I've tweeted about whether people harmed by Covid can sue the government (w/ some side-tweeting on suits against nursing homes & hospitals). Next up....

1/ Can the states sue the federal government over its response to #Covid19?

W/ apologies to
@HankGreelyLSJU, who points out anyone can always sue anyone else. Of course they can. Let's talk about how and whether it would work, though.

2/ For starters, let's clarify that this would most likely be a scenario where one or more state executives (probably via state attorneys general) sues the federal executive (the president himself and/or the political appointees charged with specific tasks, e.g., HHS Sec. Azar)

3/ Also, we're almost certainly talking about suits seeking a court order requiring the fed. administration to stop/start doing something (injunctive relief), not $ damages. But the order could include a requirement to release/use funds Congress appropriated, which could mean $.

4/ Scenario A: If the president tries to muck around w/ orders mandating physical distancing--by lifting them, imposing them, saying they don't apply to churches, etc.--states would probably bring suit asking the courts to invalidate the federal order.

5/ The states would argue the president lacks authority (from the constitution directly or delegated to him by congress) to overrule state law on these matters. Depending on the specifics (what exactly the president was trying to do & why) states might have a good shot at success

6/ Scenario B: If the basis of the states' argument is that the federal govt ISN'T doing something it should be doing (vs. IS doing something it shouldn't), it's much, much tougher for states to get a court order requiring the federal administration to act, but not impossible.

7/ Basically, the state asks the courts to rule that the federal administration isn't doing what the federal legislature told it to do. Precedents include efforts by states to force the federal executive to comply with federal law re: eg, immigration & environmental protection

8/ In a case brought by Massachusetts (& a bunch of other states) v. the US EPA (under GW Bush administration), SCOTUS endorsed the idea that the states have a role in holding the presidential administration accountable for following federal law (directions from Congress).

9/ It was a 5-4 decision, though, w/ Roberts, Scalia, Thomas & Alito dissenting b/c they rejected the view that states had standing to hold the administration accountable.

10/ Even if states are able to establish that they have standing to bring their claims against the fed administration, they'd also have to point to specific provisions in federal statutes that direct the administration to take specific actions it's failed to take.

11/ In the EPA case, the states pointed to provisions of the Clean Air Act where Congress directed the EPA administrator (by using the word "shall" not "may") to issue standards for air pollutant emissions.

12/ The liberal + Kennedy SCOTUS majority ruled that this language didn't necessarily require the administration to regulate GHG emissions from vehicles (as the plaintiff states desired), but it did require the administration to articulate a reasonable basis for not doing so.

13/ Whether states can hold the president accountable for failure to, eg roll out testing, distribute PPE & ventilators from stockpile, invoke Defense Production Act, etc., etc., depends on the inclination of the current bench and the language congress used in relevant statutes.

14/ Some lower federal court judges would be amenable to following the SCOTUS precedent in the EPA case (and others) to find states have standing, but there's reason to think the current SCOTUS might not be.

15/ And even if courts find standing, a lot--but not all--of the language used in statutes defining the federal role in pandemic response is discretionary (using "may" not "shall"). I imagine states attorneys general are currently scouring federal emergency statutes for "shall"s.

16/ To reiterate: these suits would almost certainly fail to obtain any kind of compensation for states (like the money states can get from private defendants, e.g., opioid/tobacco manufacturers).

17/ The states' goal would be for the courts to order the federal administration to take steps going forward (which could include releasing available funds/resources or distributing them differently.

18/ The more likely result, even if states were successful, would be for a court to order the administration to explain itself, but court-ordered explanations can result in policy changes.