FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
Posted on 01/30/2016 12:33:35 PM PST by Elderberry
SCOTUS 101: Standing
This is the first in a series of "explainers" about the U.S. v Texas immigration case the Supreme Court agreed to take up in 2015. They will explain important legal terms in ways that we hope you will find understandable. Today we will explain the issue of "standing."
STANDING: What it is and why it matters to the Supreme Court and to us
When the Supreme Court hears arguments on the immigration executive action case, the first question the Justices will have to decide is whether Texas and the other states on this lawsuit even have the right to sue. That's called "standing." And, it's important because not every disagreement has the right to be aired out in a federal court, just because one party is upset.
Standing is a legal term which determines whether the party bringing the lawsuit has the right to do so. Standing is not about the issues, it's about who is bringing the lawsuit and whether they a legal right to sue. Key to understanding standing is that federal courts have specific jurisdiction over certain issues. As a general rule, federal courts only have authority to hear actual controversies, a term that does not include "political questions."
In this case, Texas brought a lawsuit because it disapproved of President Obama's executive actions on immigration. Texas asserted it had the right to bring its claim to court—that it had standing— because DAPA and DACA expansion would cost the state money by requiring it to issue driver's licenses to qualified parents and DREAMers. But, that's a questionable claim—especially because it's mainly an attack on how the President has decided to enforce the immigration law. The Supreme Court has already said in other cases that the President has broad authority when it comes to immigration enforcement—including the granting of deferred action. Nor will the Court want to weigh in on issues that could be resolved in the usual political process.
Standing has already stopped one challenge to the President's executive actions. Maricopa County Sheriff Joe Arpaio's case, filed in DC Federal District Court, was dismissed because he did not have standing. The DC Circuit Court of Appeals agreed, noting:
We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require.
The Supreme Court decided not to hear Arpaio's appeal of that ruling this year.
It's important to know that just because Judge Hanen and the Fifth Circuit believed Texas had standing, doesn't mean the Supreme Court will. In fact, as noted below, many of the legal observers following the case doubt Texas has standing.
So, why is this important? If the Supreme Court decides Texas does not have standing, the lawsuit is over. Texas will have lost its ability to sue in federal court. And, Judge Andrew Hanen, who issued the injunction against DAPA, will not be allowed to rule any further in this case. If Texas does have standing, other issues will decide the outcome. We'll have more on that later.
Read on to learn more about what the experts say about "standing" in this particular case:
At Huffington Post, Stephen Legomsky, Professor Emeritus at Washington University, principal author of "Immigration and Refugee Law and Policy," and former Chief Counsel of USCIS, wrote:
Before a federal court can even address the merits of a case, the Constitution requires the plaintiff to demonstrate "standing." This means the plaintiff has to show that the defendant's actions will cause the plaintiff concrete harm. Texas's lawyers have devised a clever argument: Deferred action results in temporary "lawful presence;" Texas law makes foreign nationals who are "lawfully present" eligible for driver's licenses; and the application fee for a Texas driver's license does not cover the full processing cost. Therefore deferred action will cost Texas money.
There are many flaws in this argument. The biggest is that no one is forcing Texas to issue driver's licenses to deferred action recipients; that is the state's choice. So Texas has to argue in effect that just being forced to choose between incurring costs and changing its policy is enough to give it standing — even if the policy change is one that it actually prefers.
No court has ever gone to that extreme, and for good reason. First, federal laws require a steady stream of interpretations and policy decisions by a myriad of federal agencies. Practically any federal interpretation or policy decision that favors those who seek immigration benefits will make the affected individuals eligible for some state benefit somewhere. Thus, under Texas's theory there will almost always be some state that could plausibly claim standing. And given our country's deep ideological and partisan divides, there will always be a state that desires to do so.
A January 19, 2016 New York Times editorial also explained the standing issue in the Texas case:
Apart from the fallacious argument on the president's powers, the states have no standing to sue. Texas claims that it has that right simply because it thinks the president's orders would harm its economy. If the court were to accept this kind of claim, it would mean that any time a state or city opposed a federal action, it could drag that political dispute into the courts.
As Judge Carolyn King noted in her dissent in the Fifth Circuit's ruling, this argument "appears to allow limitless state intrusion into exclusively federal matters — effectively enabling the states, through the courts, to second-guess federal policy decisions."
Linda Greenhouse, the noted Supreme Court reporter for the New York Times, wrote about the issue of standing and the Supreme Court last fall:
The classic rationale for a robust doctrine of standing is that it protects the constitutional separation of powers. In 1993, before he became a judge, John G. Roberts Jr. expressed this view in an article published in the Duke Law Journal. "By properly contenting itself with the decision of actual cases or controversies at the instance of someone suffering distinct and palpable injury," the future chief justice wrote, "the judiciary leaves for the political branches the generalized grievances that are their responsibility under the Constitution." He further observed: "Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of the other branches." (Justice Antonin Scalia, then a federal appeals court judge, wrote a law review article in 1983 titled "The Doctrine of Standing as an Essential Element of the Separation of Powers.")
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
The importance of the Standing matter can not be understated. Standing law is what prevents the Congress from enforcing it’s enumerated powers against the run away executive.
Folks like Andy McCarthy say impeach the President if you don’t like it. But Obama, as despicable as he is, hasn’t committed a high crime when he says lets make 5 million new citizens. In the 1993 case Justice Roberts has taken sides - the Supreme Court is usurping Congress’ power and giving it to the Executive.
Standing is NOT in the Constitution. It’s a court practice. Certainly Congress’ Article 1 powers supersede the Court’s practice.
Absurdly what’s left is that Congress has to sue the SCOTUS for acting unconstitutionally by placing the concept of Standing in front of Article 1 Section 1? It seems mundane but it’s among the mst important issues of our time.
Thank you for referencing that article Elderberry. Please bear in mind that the following critique is directed at the article and not at you.
On one hand, standing matters to the Supreme Court.
On the other hand, the state sovereignty-ignoring Supreme Court is as corrupt as the legislative and executive branches and is in dire need of a master reset.
So when patriots elect Trump, or whatever conservative they elect, they also need to elect a new, state sovereignty-respecting Congress that will be willing to fire state sovereignty-ignoring activist justices.
Congress could define proper standing under its Article III powers.
Of course, that could involve controversy, which is anathema to the first purpose of members of congress - reelection.
Then I’d really like someone to explain to me why all the various “environmental non-profit” organizations have standing to sue and receive huge benefits/payouts. Where is the “concrete damages” to them for what they are suing about. If a citizen who is economically damaged or disadvantaged by the environmental law doesn’t have standing to sue, why should a non existent political entity like Friends of the Erf have standing? How can they show any “concrete damages”?
If the Court is stacked with liberals, or even with ambivalent types like Kennedy, we will in the end become France.
Definition of legal standing:
If a Liberal is suing a lawful conservative principle then they are defined as having standing.
If a Conservative is suing a lawless liberal Action then there is no standing.
I find it absurd that the Court would attempt to hold We the People to ANY ‘standing’.
We the People, the FINAL arbiters of what is/not Constitutional, the SOURCE of govt and their powers must show a ‘reason’, a ‘fault’ for any transgressions when govt over-reaches, does not do its DUTY/job...
I find it as insulting and absurd as being TOLD how one should just the findings in any case; as if We could not judge the Law itself.
As if one needed yet ANOTHER instance to show how far afield we have come from our Republic beginnings...
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.