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Monday, April 01, 2013

The limits of governmental standing

Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:

When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.

Posted by Howard Wasserman on April 1, 2013 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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Howard:
Do you think that there might be a difference between Windsor and Hollingsworth? In the former, members of Congress are seeking to defend the law; in the latter its self-appointed members of the public trying to do the same. I can see a difference between the two. If the Court denies standing in Windsor, it raises separation of powers problems, essentially allowing the President to veto retroactively an enacted statute. (I would think for injury purposes the Court may want to require that one of the participating members of Congress be someone who voted for DOMA originally, but that's satisfied here.) If the Court denies standing in Hollingsworth, on the other hand, it would be reaffirming its earlier case law that someone claiming standing to sue must show a discrete and particularized injury. The intervenors (who need standing to be in the Supremes or the Ninth Cir.) are no different than other voters who voted for Prop. 8. If the people of California don't like what the governor or attorney general are doing in not enforcing the statute, they can always recall them. (Of course, Congress could always institute impeachment proceedings if it doesn't like the President refusing to defend a statute.) I'm not sure whether this is persuasive, but it's at least one way of thinking of them separately.

Posted by: Peter Appel | Apr 1, 2013 11:00:18 AM

"Adverseness, the real concern underlying standing"

Is this really the best way to look at standing jurisprudence over the past several decades? I thought that the general view of standing (going back to at least 1983 with Scalia's article) was that the real concern with standing is separation-of-powers. (I.e., the reason that undifferentiated public injuries are nonjusticeable is that they are best committed to the political process, not because there won't be plaintiffs sufficiently interested in the case to provide adversity.)

Posted by: Standing geek | Apr 1, 2013 11:05:21 AM

Peter: You captured the distinction that the Court probably will draw to find standing in Windsor and not in Hollingsworth. The point I'm trying to urge is that none of this should be an Art. III issue. If California wants to empower the proponents in some situations, then federal courts should not care. And yes, the check is the voters against the state executive (and perhaps impeachment at the federal level).

Geek: The argument in Windsor focused on adversariness rather than separation of powers. Yes, the cases place separation at the heart of the debate. But I am not convinced; the Court has rejected efforts by Congress to expanding standing, which would seem to alleviate the separation of powers concerns. So it must be something else--namely adverseness and concreteness--that are still missing even if Congress expands standing.

Posted by: Howard Wasserman | Apr 1, 2013 1:03:25 PM

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