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Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Just one skeptical comment: I doubt that we should think of a state legislature as a rights-holder under the Election Clause, or that we should think of the Election Clause as a provision that creates a right. Nor do I think that Bond was asserting the rights of states, or that the City of New York was asserting the rights of congressmen in Clinton v. City of New York when it challenged the line-item veto (indeed, Raines v. Byrd suggests just the opposite). I think that when someone has Article III standing to challenge the violation of a structural provision of the Constitution, there isn't really a question of third-party standing or whose right they're asserting, because such provisions don't bestow rights on particular people; they just limit the powers of some parts of government and confer power on others. If you like, we all have a right against being subject to and injured by structurally invalid laws; such "rights" that exist here aren't the rights of those branches of government the structure confers power upon.

Posted by: Asher Steinberg | Dec 15, 2020 2:17:57 PM

Jeff: Except that other claims on which "the law doesn't recognize that you have the right on which you base your claim" are treated as merits rather than standing. For example, an employment-discrimination plaintiff who is an independent contractor; you could say she lacks standing, but courts say her claim fails on the merits.

I think the so-called "statutory standing" cases (especially antitrust) are the worst offenders and the source of the most confusion.

Posted by: Howard Wasserman | Dec 15, 2020 9:56:59 AM

I'm always suspicious of attempts to create binary conceptual baskets as between "merits" and "non-merits."

As I recall, in the antitrust area, standing to sue for damages has a relationship to the standard for showing antitrust injury. That is, "indirect purchasers" from a price-fixer have no standing and the reason is that the connection to the wrong becomes attenuated as you move through the distribution chain.

In the securities fraud area, Blue Chip Stamp is the SCOTUS case holding that only purchasers and sellers of the security have standing to allege Rule 10b-5 private right of action claims for damages. Again, the standing characterization masks a more pragmatic concern - if you didn't buy or sell the security, but instead allege, for example, that you were injured because you were fraudulently induced to hold the security, or not buy the security at all, the proof problems overwhelm.

Seems to me the prototype of "technicality" is truly jurisdictional - you would have a good claim if you made it in the correct forum. But not to have standing is to say that the law doesn't recognize that you have the right on which you base your claim.

Posted by: Jeff Lipshaw | Dec 15, 2020 9:48:21 AM

Thinking of standing as merits here is pretty helpful, I think.

Why can't Texas sue other states about how they administer their elections? Because the people with rights with respect to a state's election administration are actors within that state--the legislature, voters, candidates. So Texas has no cause of action.

Why can't Trump bring a federal case challenging how state officials interpret state law? Because states establish state-law schemes in state court for contesting elections and Trump should not be allowed to make an end run around them by invoking the Electors Clause. Cf. Armstrong v. Exceptional Child Center. So Trump has no federal cause of action.

Posted by: JHW | Dec 15, 2020 4:38:47 AM

Trump brought that lawsuit in Wisconsin. The district court found it had jurisdiction (standing because an injured candidate, not moot before January 6, no 11th Am), that trashed it on the substance.

Posted by: Howard Wasserman | Dec 13, 2020 3:06:52 PM

Since the Supreme Court refused to take the case because it found that there was no legal standing, it might be possible for virtually the same case to be filed - in a lower court originally rather than in the Supreme Court - by President Trump, who can presumably argue that he suffered “injury in fact, economic or otherwise” from not being re-elected president.

See, e.g., Texas Election Lawsuit Not Completely Dead For Trump

Such a refilled law suit challenging the election, with Trump as a plaintiff, would almost certainly be too late to matter (and therefore perhaps moot on arrival), and would also suffer from all the other problems and weaknesses of the Texas case but, contrary to what many talking heads opined, the Supreme Court’s decision based on standing would not necessarily preclude it.

As the law professor who helped his law students obtain standing, in the face of the Sierra Club defeat, in the precedent-setting SCRAP case, who got standing to order the appointment of an Independent Counsel, and to successfully challenge the 100+ year old policy of the Cosmos Club to refuse to admit women, I agree that standing is much more than just a technicality.

I would also respectfully suggest that in many cases where standing was denied, it may well have been granted if plaintiffs had been somewhat more creative in thinking outside the box.

Indeed, when we discuss such cases in my class in Administrative Law, I challenge my law students to try to figure out how the standing portions of the pleadings might have been strengthened.

Posted by: LawProf John Banzhaf | Dec 13, 2020 3:02:46 PM

In some states by the way, it is prescribed in the constitution. I quote from the constitution of Zimbabwe (article 3(c)):

"c.the court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities;"

Posted by: El roam | Dec 13, 2020 2:28:55 PM

Unbelievable, titled:

"Trump wants a special counsel to investigate purported election fraud and Hunter Biden allegations, report says"



Posted by: El roam | Dec 13, 2020 2:20:35 PM

Important. Standing has nothing to do with technicality. Correct. Yet, technicality is not always the law of course.This is because, some formal or actually technical issues, can be fixed, can be amended, and they don't belong, either to: merits, procedure, standing etc.... Suppose, that one signature is missing. Certain forms not filled correctly. A judge would give order to fix it, and move on with the case. Why ? technicality indeed. While speaking of standing, it is typically denied, and can't be fixed or further amended. If one party for example, has not shown injury, he can't amend it of course typically.


Posted by: El roam | Dec 13, 2020 2:12:13 PM

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