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Friday, December 18, 2020

Malevolence + Incompetence = No Standing

That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."

Breyer dissented for Sotomayor and Kagan. Money quotation:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.

Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.

Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.

Posted by Howard Wasserman on December 18, 2020 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I've been saying ever since law school, if not before, that for all the grandiose claims made about how standing is an essential part of the Constitution, its advocates are curiously unable to point to any shred of actual language that supports ANY standing doctrine (much less the modern notion of injury-in-fact/causation/redressability, which is just made up out of whole cloth). "Cases and Controversies" cuts affirmatively AGAINST the existence of a standing doctrine; "controversy" literally suggests that a matter is some kind of dispute of significant public import that nevertheless does not rise to the level of a true case.

What's even more offensive still, standing is a stupid concept on its merits-- it basically says that we will throw out lawsuits that no rational person would bring in the first place (either because they have no stake, or because they will achieve nothing even if they win). But rational people bring lawsuits that are thrown out on standing grounds all the time. There's no logical reason why we could not simply let the marketplace of ideas, so to speak, determine which lawsuits are important enough to spend millions of dollars litigating. Standing persists simply because a conservative judiciary wants excuses to refuse to enforce the law.

Posted by: Paul Thomas | Dec 18, 2020 6:19:48 PM

Perhaps the correct takeaway here is that, as I have held, standing doctrine really is not really rooted in anything but the prudential hunches of judges about what role courts should play in particular disputes. It's certainly not genuinely rooted in the phrase "cases and controversies." I really haven't seen evidence of original intent/meaning that the phrase compels modern standing doctrine. It is the product, at best, of freewheeling political philosophy, and likely more realistically, the desire to toss hot potatoes, not genuine constitutional interpretation.

Posted by: Edward Cantu | Dec 18, 2020 1:35:52 PM

If it is really based on "guesswork" as stated in the opinion, so, I quote:

" We simply do not know whether and to what extent the President might direct the Secretary to "reform the census" to implement his general policy with respect to appointment"

Then we are all good. Yet, the assertion that I quote:

"And in the meantime the plaintiffs suffer no concrete harm from the challenged policy itself, which does not require them "to do anything or to refrain from doing anything"

Is bit problematic. For, that is why court is petitioned typically. They can't do nothing to stop that train. They would like the court, to stop it.Yet, if they can't suggest, what is the final destination, and with reasonable probability (as asserted by the court)then we have an issue of standing indeed.


Posted by: El roam | Dec 18, 2020 11:45:11 AM

I love this pull-no-punches commentary. Keep running with it please!

Posted by: hardreaders | Dec 18, 2020 11:21:26 AM

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