Friday was very busy day. The D.C. Circuit released its opinion in the Save Jobs USA v. DHS case in which the court held that American workers had standing to challenge whether Obama Administration regulations allowing certain spouses of H-1B guestworkers to work as well. This was major court victory for working Americans.
The release of a court opinion also brings a torrent of media inquiries. Making things worse this time, I also had to deal with a deluge of inquiries from panicked American workers because there were posts on Twitter claiming that DHS, not Save Jobs USA, prevailed on appeal.
Some day I will set down a detailed history of the concept of "standing". As short version is that the Supreme Court invented standing in its current form as a means to protect the New Deal. Standing allowed the courts to allow otherwise unconstitutional New Deal provisions to stand without having to go against precedent. Under the newfound doctrine of standing, courts could declare the plaintiffs lacked standing to bring the case in the first place, so the court could avoid a decision on the merits of the case.
Later the Supreme Court adopted the fiction that its invention of standing was a constitutional requirement, even though standing appears nowhere in the Constitution and the concept would have been alien to its drafters.
The rules of standing are built on an unsound foundation and their application is wildly inconsistent. However, there are some well-defined bases for standing. If a plaintiff brings a case under such a basis, standing is likely. When a plaintiff brings a novel theory of standing the outcome becomes random or even political.
Standing transforms many cases into effectively two cases. First, the plaintiff has to litigate whether it has standing to bring the case, often through appeal (as with the Save Jobs USA plaintiffs). Second, the plaintiff has to litigate the merits of the case. It is an absurd state of affairs but, until the Supreme Court abandons its invention of standing, it is something we have to live with. A plaintiff can spend hundreds of thousands of dollars just litigating whether it has standing to litigate.
There were no surprises in the D.C. Circuit’s opinion. The injuries Save Jobs USA showed have routinely given rise to standing.
So now the case goes back to the district court for a decision on whether the work authorizations to H-1B spouses were within DHS authority.