MANUFACTURING SOVEREIGN STATE MOOTNESS.

TABLE OF CONTENTS INTRODUCTION 288 I. MOOTNESS DOCTRINE AND ITS EXCEPTIONS 290 A. Capable of Repetition, Yet Evading Review 291 B. Voluntary Cessation 292 II. VOLUNTARY CESSATION APPLIED TO GOVERNMENT DEFENDANTS 295 A. Legislative-Like Action by Elected Officials 295 B. Discretionary Action by Unelected Officials 298 1. Killeen and the Good Faith Presumption 299 2. The Defects of Good Faith 301 III. MANUFACTURED MOOTNESS AND STATE SOVEREIGNTY 302 A. Popular Sovereignty vs. Government Sovereignty 302 B. Sovereignty and Mootness 306 IV. INSIGHTS FROM SOVEREIGN STATE STANDING 307 A. Shared Purposes and Rationales of Standing Doctrine 308 B. Sovereign Interests, State Standing, and Sovereign State Mootness 309 1. Overview of State Interests 309 2. Manufactured Sovereign State Standing 311 3. Sovereign Interests and Manufactured Mootness 314 V. PUTTING IT ALL TOGETHER: WHEN MAY STATES MANUFACTURE MOOTNESS? 316 A. Legislative-Like Action by Elected Officials 316 B. Discretionary Action by Unelected Officials 317 CONCLUSION 318

INTRODUCTION

The lead-up to the Supreme Court's Fall 2019 term was steeped in controversy. The Court's first gun rights case in nearly a decade, New York State Rifle & Pistol Ass'n v. City of New York, quickly became more about the far less exciting justiciability doctrine of mootness and the legitimacy of the Court than the Second Amendment. (1) Promptly after the Court granted certiorari, in a clear attempt to prevent the Court from creating unfavorable precedent, New York City repealed and amended its stringent gun transportation rule. (2) Then, for good measure, the state legislature passed a law rendering the city's old rule illegal. (3) To pile onto the controversy, a group of five United States senators submitted an unprecedented amicus brief ordering the Court to drop the case or face potential restructuring. (4) In a brief per curiam opinion, six Justices held that the city's repeal of the rule successfully rendered the case moot. (5) In his dissenting opinion arguing that the case was not moot and that New York's rule violated the Second Amendment, Justice Alito warned that the Court has "been particularly wary of attempts by parties to manufacture mootness in order to evade review." (6)

Despite Justice Alito's admonition, lower federal courts have not been so skeptical of defendants' attempts to evade review. This is particularly true in cases involving voluntary cessation by government defendants. Voluntary cessation, a general exception to the mootness doctrine, provides that a case does not become moot merely because the defendant ceases the challenged conduct. (7) However, many courts held that government defendants are entitled to a presumption that they act in good faith when strategically mooting cases by voluntarily ceasing the challenged conduct. (8) For instance, in a recent case, Speech First, Inc. u. Killeen, the Seventh Circuit held that state university officials were presumed to have acted in good faith when, mere days into litigation, they repealed a challenged university policy limiting students' free speech on campus. (9) Therefore, the students' challenge was moot. (10) These two cases--New York Rifle and Killeen--present the central question that...