James Harlow has posted States, Persons, and the Administrative Procedure Act, University of Louisville Law Review, Vol. 64, pp. 305-319 (2026), on SSRN. Here is the abstract:
When the Federal Government adopts a policy that States oppose, a lawsuit usually isn’t far behind. In filing suit, States often invoke the Administrative Procedure Act’s (APA) omnibus cause of action. But only a “person,” as defined by the APA, can do so. And the statutory definition does not mention States. Nor, under a well-established rule of interpretation, do we presume a “person” includes a sovereign, like a State of the Union. Just the opposite. So, is a State eligible to file suit under the APA? In nearly 80 years of APA litigation, only a few courts ever spotted the issue. Rather than approach the question methodically and deploy the usual interpretive tools, these courts instead relied on assumptions to deem a State a “person.” And these assumptions have been accepted without question. However, a rigorous search for the APA’s original, public meaning reveals the faults in that approach. The interpretive signs indicate that a “person” did not include a sovereign State and, by extension, any arm of a State. That means, absent a statutory amendment, States would lose their usual means of challenging federal agency action in court. The disappearance of such litigation would likely have significant ramifications on Federal-State relations.