The Slippery, PC Application of "Standing" in the States' Lawsuit against Obama's Amnesty

By John Miano, December 29, 2015

I attended Seton Hall Law School during a period of transition. At that time the professors were divided between those who took an older approach to teaching and the law and those with a newer approach. The old-school professors were people who had significant experience practicing law then went into teaching. The new school of law professor graduated from Harvard or Yale, clerked for a federal judge, then went into teaching and has little to no practical experience in law. The more of the Harvard/Yale professors a school has, the higher the Harvard/Yale network of professors rate the school in the U.S. News peer rankings, producing a high ranking for the school.

When I was in law school, the faculty was in their offices and you could stop by any time to ask questions. Old-school professors, even those you did not have for class, would sit down at your table during lunch at Ralph's Cafe and help you with your classwork.

But that all changed with the shifting to the new-school professors. Within about three years of graduation, only a select few of the faculty were in their office. During the school day, nearly all the doors were closed and had signs reading, "Office Hours: 3:00 p.m to 3:07 p.m. Wednesdays with full moons." Instead of interacting with students, professors are now holed up writing the definitive paper on "Sexual Orientation and its Effect on Jury Selection During the Protectorate."

In class, the new-school professors put forth a dynamic view of the law, one where the law changes to get the politically correct outcome.

I was reminded of this transformation while reading an opinion piece by two law professors published recently in the New York Times on Texas v. United States (the lawsuit by 26 states against President Obama's unilateral DAPA amnesty for illegal-alien parents of U.S. citizens). The professors argue that the Supreme Court "should accept the case, hold that the plaintiffs lacked standing, and send it back to the lower courts with instructions to dismiss."

"Standing" is a largely political invention of the Supreme Court rationalized as a jurisdictional issue that limits those who can bring a case in the federal courts. In theory, standing is a good idea. It would not make sense for parties who have no real interest in an issue to prosecute a case. In practice, the standing rules put forth by the Supreme Court are vague and constantly changing; the application of standing among the circuits is inconsistent; and in the district courts, standing is a lawless Wild West. Many courts use dismissals on standing to make political judgments on cases that do not upset precedent on the merits. To call standing "law" would be to assign to it a level of order that simply does not exist. The Supreme Court recently changed the rules of standing so that they are significantly different from what I learned in law school, just over a decade ago. Standing is an evolving work in progress built upon a foundation so shaky that it requires constant revision.

In fact, the threshold for standing is very low, as the Supreme Court states the rules. The basic rule is that a plaintiff must have an injury that is traceable to the challenged action and can be redressed by a favorable outcome. That injury need only be a "trifle." If you have a politically correct trifle of injury, such as seeing the Ten Commandments hanging in a courthouse, the injury is assumed without discussion. When a state has the tangible, not-so-politically correct injury of having to spend millions of dollars to providing services to illegal aliens (as in the Texas case) it take 20 pages of analysis for the court to conclude there is standing. In fact, we spend nearly as much paper addressing standing arguments as we do the actual merits of the case. Invariably, these standing issues have already been settled by the courts but the government raises them in the knowledge that some courts will bend the rules when it comes to standing.

My first trip through the federal courts was an eye-opening experience. I had an unusual case where there was precedent on every issue and the precedent was in my favor. The district court judge invented out thin air two new standing rules. On appeal, I apparently was successful in refuting the district court's newly invented rules by arguing that a regulation promulgated by an agency was not a statute enacted by Congress, only to have the court of appeals invent yet another new standing rule and doing so in an opinion that was designated "non-precedential" to it would not be binding on the court in the future. (My response was to produce a written standing strategy that is designed to allow plaintiffs to use the standing chaos to their advantage.)

Returning to the Times op-ed, the law professors state:

Until now, only those who have been directly harmed in a concrete, individualized way have been permitted to sue. Even if a federal law raises taxes, increases air pollution, or gives tax breaks to private schools that discriminate based on race, parties that might be affected most likely won't be able to sue because they have only a generalized grievance suffered by millions of others, rather than a uniquely personal injury.

That statement is a mangling of several different standing concepts into a misstatement of the law. The Supreme Court does ban generalized grievances from serving as the basis for standing. However, a generalized grievance has two requirements: it must affect the public at large and it also must be abstract and diffuse. For example, the desire to have the government enforce the law is the classic example of an abstract injury that can give rise to a generalized grievance.

The law professors assert:

If the harm suffered is so broad as to affect thousands or millions of people, then the proper recourse is to seek change through the political process, not the courts.

That is the professors' opinion but it has no relation to the law.

Let us assume that the head of the National Park Service sets up a shrine to the Virgin Mary on the National Mall in front of the Capitol. The resulting news coverage causes nearly everyone in the country to be injured by seeing images of this offensive Christian symbol. Under these law professors' argument, no one would have standing to sue; instead, redressing this injury would require an act of Congress. But what if Congress and the president had approved the display?

In reality, the courts routinely and appropriately confer standing on plaintiffs who share widespread injuries. Yes, the plaintiff must individually have the injury but the fact that others (even millions) may have the same injury does not deprive a plaintiff of standing.

Here the law professors have ignored an entire body of law:

Worst of all, if such lawsuits are routinely allowed, then state officials may use the courts to delay implementation of federal policies with which they simply disagree.

Under the Administrative Procedure Act, Congress delegates its authority to executive agencies and delegates to the federal courts the power to ensure the agency conforms to the limits of the delegated authority. In fact, actions taken by the Department of Homeland Security are explicitly reviewable by the courts.

The reality here is that Texas and the other states brought their challenge to a specific administrative action (DAPA) under causes of action explicitly authorized by Congress. Such plaintiffs routinely have standing. Unfortunately, the doctrine of standing is confused, the courts are willing to entertain bizarre standing arguments, and there are so many outlier opinions that cases like Texas – where standing should be obvious and the opinion should state so in no more than two sentences – become tortured legal analyses.

You can bet that, if the plaintiff were seeking to enforce the Establishment Clause or expand environmental protection or gay rights, these same law professors would be arguing for an expansion of standing. Their article reflects the dynamic view, where the law changes depending up on the plaintiff and the plaintiff's issues, to achieve politically correct outcomes.

I plan to write more soon about the Texas case because there is some news to report. As here, the media has tried to frame Texas as a question of whether the president has discretion to not deport illegal aliens. In fact, the case has much broader implications that the media would rather not be talked about.