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Friday, December 18, 2020

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


I think you flag a lot of the differences yourself. It isn't that hard to identify Jewish people, especially if the mayor doesn't make it hard for his officials to do so (whereas the census laws preclude things like sampling that could make this much easier). Here, it seems that you need a certain substantial quantum of identifications of people who are apparently fairly difficult to identify for Census purposes for injury to occur. In your hypothetical, in the event Jewish people are identified, the policy says they suffer harm. Here, the plaintiffs only suffer harm contingent on a hypothesis about where undocumented immigrants will be, relatively, identified, if they're identified. We don't really know how accurate that hypothesis is because we haven't identified them yet. I guess I would also add that the process of classifying people by religion for disfavorable treatment, or even the attempt to, may itself work a stigmatic harm that suffices for standing. The Court's racial-gerrymandering cases of the 90s rely on a much wackier theory of stigmatic harm than the one I've just floated. So I think you've baked way too much in your hypothetical to provide a reductio of the Court's decision.

Could I also say that whether or not we like standing law, this seems like a case where, contra to your oft-stated views, standing doesn't seem to have much to do with merits? I suppose you could say that standing here merely replicates an element of the plaintiffs' (I'm assuming) APA cause of action, which may be absent even if they're right about violations of the underlying statutes. Maybe that's right, though absent standing law, what we said "aggrieved" meant in the APA could look pretty different.

Posted by: Asher Steinberg | Dec 18, 2020 6:42:09 PM

". . . because the government might be unable to achieve its unlawful aims."

I realize, from reading your posts, that the issues are often muddled, but that seems more like ripeness than standing, which usually refers to the particularized harm to the plaintiff(s).

Posted by: Steven Lubet | Dec 18, 2020 4:58:04 PM

You are right that the cases are not parallel. But I think both get at the idea of denying standing because the government might be unable to achieve its unlawful aims.

Posted by: Howard Wasserman | Dec 18, 2020 3:30:29 PM

Shouldn't the question in this hypothetical be whether the departments have standing, or perhaps those who rely on municipal services, to make it equivalent to states?

Posted by: Steven Lubet | Dec 18, 2020 3:08:52 PM

The last paragraph reminds of a recent post by Prof. Segall on standing over at Dorf on Law.

Posted by: Joe | Dec 18, 2020 2:15:43 PM

Two differences:
1.) An identify-the-Jews policy would cause Jews to attempt to hide their religion for the remainder of December, causing immediate harm. The Census has already happened, so there is no remaining behavior to chill. This was not true 6 months ago, of course.
2.) Such a policy would certainly identify some Jews, guaranteeing some future harm to those individuals. The Census intends a macro-level intervention, and so may completely fail to produce a system for discounting any undocumented residents. It is therefore possible that absolutely nothing will happen.

The Court is still wrong, but I think your example is distinguishable.

Posted by: Matthew Kugler | Dec 18, 2020 12:05:54 PM

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