This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the states, one independent suit filed by the state of Virginia, and a little-noticed but potentially important case filed by the Thomas More Law Center on behalf of four individual citizens who object to the individual mandate and refuse to obey it.
The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness.
As discussed below, I think eventually a case will arise that meets even the most rigid standing and ripeness standards. At the very least, it should be possible to bring such a suit once the individual mandate takes effect in 2014. By that time, however, public anger against the health care bill might have diminished, at least some parts of the bill will have been implemented, and it will be much harder to uproot. Thus, it is in the Obama administration’s interest to persuade the courts to postpone consideration of these issues for as long as it can.
I. Standing.
The Supreme Court has repeatedly ruled that citizens cannot file federal lawsuits challenging a statute unless they have 1) suffered some sort of past or imminent material injury, 2) the injury was caused by the law, and 3) it can be redressed by a judicial decision. I think it’s fairly clear that the individual citizens represented by the TMLC fit these requirements. The health care mandate will require them to pay for health insurance (a material injury in the form of losing money), the injury was surely caused by the law, and it can just as certainly be redressed by a judicial decision striking down the mandate. It is also clear that state governments have standing to challenge the various mandates and federal grant requirements imposed on them by the bill.
On the other hand, it is far less obvious that the state governments have standing to challenge the individual mandate. The mandate imposes obligations on individual citizens, not state governments. It’s possible that it will cost states money in various indirect ways. However, standing doctrine generally frowns on speculative, indirect injury claims.
Ironically, the states’ position might well be saved by the Supreme Court’s controversial decision in Massachusetts v. EPA, which held that Massachusetts and various other state governments had standing to challenge the EPA’s refusal to regulate auto emissions in order to combat global warming. The injuries claimed by the states in that case were highly speculative to say the least, including claims that Massachusetts’ coast line would be seriously damaged by global warming over a period of many decades. It was also far from clear that these were caused by the EPA’s decision or that they could be redressed by a judicial ruling against the EPA. After all, as the dissenting justices pointed out, US auto emissions are only a tiny fraction of total world greenhouse emissions (about 6%), and even rigorous EPA regulation would fall far short of eliminating all American auto emissions. The Supreme Court majority got around these arguments by ruling that the standing rules that apply to state governments are much looser than those that apply to individuals; states, they ruled, are ““entitled to special solicitude” on standing issues. Perhaps the same logic applies to the state governments challenging Obamacare, with their speculative claims that the individual mandate will harm them in various ways.
The irony here is that the EPA case was decided by the five most liberal justices – the ones least likely to be sympathetic to the Obamacare lawsuits, while the four most conservative justices dissented in that case and have more generally supported stringent standing rules. On this issue, I tend to agree more with the liberal justices. I don’t believe that the text and original meaning of the Constitution impose rigid standing requirements; I’m not even convinced that they impose any standing requirements at all, given that Article III gives the courts the power to rule on “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made” and all “Controversies to which the United States shall be a Party.” It seems to me that you can have a case – and certainly a “controversy” – without having any kind of material harm involved. On these issues, my view is very different from that of most right of center legal scholars, including co-blogger Jonathan Adler, who was very critical of the Court’s decision in Massachusetts v. EPA.
Be that as it may, it will be interesting to see which way the courts go on this. In particular, I wonder if this case will lead liberal judges to endorse restrictive standing rules and conservative ones to oppose them – unaccustomed positions for both sides.
II. Ripeness.
The feds could also argue that the lawsuits should be thrown out of court because they don’t meet the procedural requirement of “ripeness.” The Supreme Court has ruled that a suit should be dismissed for lack of ripeness if it “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Unlike in the case of the standing issue, I think the Thomas More plaintiffs may be vulnerable on ripeness. After all, the individual mandate they are challenging will not take effect for four years. In that time, the plaintiffs may choose to buy health insurance after all, the government might alter the rules of the mandate, and the authorities might not even try to enforce the mandate against these particular individuals. Perhaps these and other possible scenarios render the claim one that depends on “contingent future events that may not occur as anticipated.” The same point applies to the possible impact of the individual mandate and other parts of the law on state governments.
Unfortunately, I have very little expertise on ripeness doctrine. So it’s very hard for me to assess either which side is right on this point or what courts are likely to do with the issue. I flag it primarily in the hopes of stimulating commentary by civil procedure scholars and others with relevant expertise.
III. Why these Procedural Issues Matter.
Even if the government prevails on standing or ripeness, it will merely postpone the day of reckoning. Eventually, the individual mandate and other controversial elements of the bill will come into effect (unless, of course, the Republicans somehow manage to repeal them). At that point, the case will surely be ripe, and it will be easy to find plaintiffs who have standing to challenge the mandate, even under very restrictive rules.
However, a lengthy delay might work to the advantage of defenders of the law. As I explained here, courts are unlikely to strike down a major federal statute with strong political support. They might be more willing to act against one that is highly unpopular, as the health care bill is today. By 2014, public anger at the bill might diminish and a reelected President Obama might be much more popular than he is now, perhaps buoyed by a recovering economy. Of course it’s also possible that Obama will be defeated in 2012 and that his health care bill will be less popular in four years than it is now. On balance, however, I think that the defense is more likely to benefit from delay caused by procedural factors than to be harmed by it.
Brett Bellmore says:
It would seem rather peculiar to me, if you could be denied standing on a “ripeness” basis, on the mere possibility that the law might be repealed in a few years. Then again, a awful lot of the doctrines the judiciary use to keep from addressing this or that issue smell more than a little iffy.
April 2, 2010, 2:27 amAnonsters says:
If the individual mandate doesn’t go into effect for 4 years, thus causing potential ripeness problems, how do the TMLC plaintiffs have standing in the present for a concrete and particularized injury resulting from the individual mandate?
April 2, 2010, 2:30 amIlya Somin says:
If the individual mandate doesn’t go into effect for 4 years, thus causing potential ripeness problems, how do the TMLC plaintiffs have standing in the present for a concrete and particularized injury resulting from the individual mandate?
Ripeness and standing are two separate issues. You can have standing to file a case that isn’t ripe yet. To put it another way, the individual plaintiffs surely have standing to challenge mandate, in the sense that, unless changed, it will cause them an imminent injury. But the issue might not be ripe yet for the reasons I discussed in Part II.
April 2, 2010, 2:38 amorca says:
They might be more willing to act against one that is highly unpopular, as the health care bill is today.
By Slim Margin, Americans Support Healthcare Bill’s Passage
April 2, 2010, 2:38 amTweets that mention The Volokh Conspiracy » Blog Archive » Standing and Ripeness Issues in the Lawsuits Against Obamacare -- Topsy.com says:
[...] This post was mentioned on Twitter by Becky Chandler. Becky Chandler said: Procedural issues of Obamacare lawsuits–Standing and Ripeness http://bit.ly/a9zlcK [...]
April 2, 2010, 2:39 amKaonashi says:
It seems like the injury part of the standing argument would be similar to the cases brought against Obama that were thrown out due to lack of proof that Obama being President caused material harm solely based on the person being a US Citizen, wouldn’t that apply here?
Ripeness would be an interesting argument because you’d be essentially arguing the inevitability of legislation based on current and possible future challenges to that legislation. I don’t think the Supreme Court has installed a crystal ball in the main hall… yet.
April 2, 2010, 2:41 amAnonsters says:
So then “imminence” isn’t really a part of the standing inquiry, is what you’re saying?
April 2, 2010, 2:45 amzuch says:
Prof. Somin:
Are you suggesting that liberal justices will have difficulty deciding, due to political predispositions, whether to decide a case on the merits in a fashion inconsistent with their previous views on standing? We know that this is an issue for the conservatives such as Rehnquist (see, e.g., the Dubya v. Gore case), but why do you suppose such is true of the alleged “liberals”?
Cheers,
April 2, 2010, 3:21 amzuch says:
Prof. Somin:
As Orca points out, you seem to confuse volume with quantity. In addition to Orca’s comment, I’d note that some of those that oppose the bill are upset that it doesn’t go far enough (but would perhaps rather have half the loaf to none at all).
Cheers,
April 2, 2010, 3:29 amMark Jones says:
I really, really dislike the concept of “standing” when it comes to Constitutional issues. If the Congress has overreached its authority, why should I have to wait until I am actually harmed by (or harm is imminent from) an unconstitutional law? Why do we have to wait until someone is ground up in an unjust meat grinder (or is dangling over it by a fraying thread) to have the courts throw it out?
April 2, 2010, 3:34 amIlya Somin says:
They might be more willing to act against one that is highly unpopular, as the health care bill is today.
By Slim Margin, Americans Support Healthcare Bill’s Passage
This poll conflicts with numerous other ones, and is likely a statistical anomaly.
April 2, 2010, 3:37 amIlya Somin says:
So then “imminence” isn’t really a part of the standing inquiry, is what you’re saying?
A harm that is scheduled to occur in less than 4 years could well be considered imminent under existing doctrine.
April 2, 2010, 3:38 amIlya Somin says:
Are you suggesting that liberal justices will have difficulty deciding, due to political predispositions, whether to decide a case on the merits in a fashion inconsistent with their previous views on standing? We know that this is an issue for the conservatives such as Rehnquist (see, e.g., the Dubya v. Gore case), but why do you suppose such is true of the alleged “liberals”?
There are plenty of cases where liberal justices have ruled at least in part based on political predispositions. Bush v. Gore, where they trumpeted federalism and a relatively narrow view of the Equal Protection Clause, is actually a good example. They’re certainly not fans of either of those positions in most other cases.
April 2, 2010, 3:40 amzuch says:
Oh, nonsense. The people that were inconsistent on “equal protection” claims were the conservatives (Rehnquist in particular), who denied relief in EP cases where invidious intent was not shown and who refuse to consider statistical evidence of discrimination (which is more than Dubya alleged) … if you’re black and not named “Dubya”. [Also ignored was the fact that the parties allegedly injured were not Dubya (who was not a Florida voter and had no standing to bring suit on such a claim) but rather some unknown and unspecified Florida voters whose votes were allegedly "diluted"]
The dissenters did not disparage equal protection claims, but felt that such were premature (which they were; the events at issue not having even happened at the time of decision) and/or best handled by the (state) courts “if and when it was discovered to have mattered”.
As for the supposed new-found “federalism” affinity of the dissenters, it’s hard to argue with their position that Florida courts are the best arbiters (and in fact the supreme arbiters) of Florida election law, and that such a proposition ought not be uncontroversial to even a 1L, much less a conservative Supreme Court justice. That’s hardly some far-reaching extension of “federalism” but simple established law.
Cheers,
April 2, 2010, 4:38 amzuch says:
Prof. Somin:
What’s particularly galling about the Dubya v. Gore majority’s new-found fondness for “equal protection for Dubya and Dubya alone, this is very fact-specific and shouldn’t be used for anyone else” was the fact that their ‘remedy’ in fact mandated that the very “equal protection violation” they claimed to be so concerned about must remain in place: They instated the “certified” counts that included partial or full manual recounts in some counties but not all (something that the statewide recounts they halted would in fact have alleviated if not cured). Their ‘remedy’ did nothing to fix the supposed “EP violation” but did ‘fix’ the problem of Dubya (a plaintiff with no standing for such an EP claim) getting ‘elected’. That’s the fundamental dishonesty of the majority decision (albeit consistent with their prior reluctance to provide any meaningful relief in EP cases).
Cheers,
April 2, 2010, 4:53 amWinks says:
How does that make sense? Let’s say there’s a law that sends a random selection of individuals to death camps in 2014. Are you telling me that you can’t challenge that law on constitutional grounds until they start rounding people up in 2014? I use an extreme example because the concept (a large, sweeping violation of the constitution) doesn’t make any sense to me.
April 2, 2010, 4:57 amhaha rimshot says:
Zing! Nice one, Ilya.
April 2, 2010, 8:06 amDavid M. Nieporent says:
1) Funny, despite the millions of times you and other libs have made this claim, you haven’t actually identified a single case illustrating this alleged inconsistency on any of the conservative justices’ part.
2) The normal principle is that judges follow established precedent, not their own personal opinions. So the issue isn’t whether Rehnquist might have argued for a narrow view of EP at one time in the past, but whether BvG was consistent with the established view of EP. It’s not a sign of “inconsistency” to follow stare decisis rather than one’s own past views.
3) Bush did not need to allege “statistical evidence of discrimination” because he wasn’t arguing that discrimination needed to be inferred from circumstantial evidence; he was pointing out actual and overt disparate treatment.
Great catch! Clearly, the parties had no standing; this is obvious to everyone who looks at the case. So obvious that nobody even thought to raise this issue. I guess you think courts should decide cases based on grounds that weren’t argued by the parties. Not only did the parties not notice this obvious issue, but neither did a single one of the four dissenting justices. I wonder why.
April 2, 2010, 9:57 amDavid M. Nieporent says:
First, Orca didn’t point that out at all; he cited a single poll. Second, that’s not confusion anyway. A policy that has lukewarm support from a bunch of people and virulent opposition from a slightly smaller number can reasonably be described as unpopular.
April 2, 2010, 10:00 amGo Vols says:
“I really, really dislike the concept of “standing” when it comes to Constitutional issues. If the Congress has overreached its authority, why should I have to wait until I am actually harmed by (or harm is imminent from) an unconstitutional law?”
Because otherwise, you may turn the Court into some sort of advisory council, which can seek out laws it doesn’t like without waiting for an actual lawsuit to come before it. I suspect you might not like the sort of Court you create there. Standing is a prudential check on the Court’s power, and a good one, IMO.
April 2, 2010, 10:00 amAnonsters says:
I dunno, the Bundesverfassungsgericht seems to work well for the Germans, and similar constitutional tribunals for lots of other countries.
April 2, 2010, 10:11 amConstitutional Doubt says:
You reliance on Massachusetts v. EPA is misplaced. That case turned on the fact that Congress authorized the suit at issue; it was more about what power Congress has to affect constitutional standing prerequisites. As the majority wrote, “Th[e congressional] authorization is of critical importance to the standing inquiry: ‘Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.’” I am not sure what right of action is being used to advance these “ObamaCare” suits (some sort of Biven’s implied RoA, maybe), but that will be critical to the standing issue. However, as you point out, I do think the big issue will be injury-in-fact. For now, the injury is probably to speculative to pass constitutional muster – there is no concrete threat of fines from Executive officials.
April 2, 2010, 10:37 amJardinero1 says:
Whenever I read about ripeness, I think about Roe v Wade where Jane Roe’s case was not ripe but actually moot since she was no longer pregnant when her case was heard. How did the court square that circle?
April 2, 2010, 10:42 amAnonsters says:
It was capable of repetition and likely to evade review.
April 2, 2010, 10:48 amSteve says:
Funny, despite the millions of times you and other libs have made this claim, you haven’t actually identified a single case illustrating this alleged inconsistency on any of the conservative justices’ part.
Zuch can speak for himself, but capital punishment is the most obvious example. It’s not hard to think of others.
Clearly, the parties had no standing; this is obvious to everyone who looks at the case. So obvious that nobody even thought to raise this issue.
Of course no one bothered to argue standing, because the court had already granted a stay based upon the prospect of irreparable harm. If a party faces the prospect of irreparable harm, obviously they have standing to sue. Now, I suppose some silly person might take issue with the basis upon which Scalia found irreparable harm in the stay order – counting votes would “cast a cloud upon what Bush claims to be the legitimacy of his election” – but I’m confident Scalia would recognize that as a very, very serious harm in any other context as well.
April 2, 2010, 11:12 amThe Volokh Conspiracy » Blog Archive » Standing and Ripeness in State Lawsuits: says:
[...] Ilya notes the standing and ripeness issues in the health care suits. A few weeks ago, Virginia Attorney General Ken Cuccinelli spoke at GMU law school (following a now-established tradition of having newly-minted AG’s speak at the law school). I asked him exactly these questions about Standing and Ripeness. [...]
April 2, 2010, 11:22 amzuch says:
I just did. Do you deny that the conservatives have rejected “statistical” proofs of (actual) discrimination? Do you deny that they have required showing of actual invidious discrimination, rather than just disparate results? Why then here is Dubya (of all people; see below) entitled to ‘relief’ on an EP claim absent even any facts being developed for the case, much less any showing of disparate outcome affecting him any more than anyone else, even moreso less the culpable mens rea of discriminatory intent?
Then who needs a Supreme Court? Lower court judges are under more obligation to do such. Let them do that thankless job.
It’s not. It’s a radical departure. I’ve explained that.
But how is Rehnquist following precedent? How are the dissenters not following precedent (as Prof. Somin insinuates)? Where is the precedent that says that you’re entitled to a beef if your name is Dubya, and you show only disparate outcomes (unrelated to any issue of racial or other types of invidious discrimination arguably addressed by the Fourteeth Amendment [and once again ignoring that Dubya didn't even show that due to the fact that the events in question hadn't even happened yet and were entirely speculative]), but you get no relief if you’re black and can show — in a nation that still is not free of racial animus — that blacks get treated differently even if the animus in any specific person is harder to show?
… in events that hadn’t even happened yet. The court went psychic. But what “actual and overt disparate treatment”? And how did such (alleged/prophesied) “disparate treatment” actually amount to an “equal protection” violation of anyone, much less Dubya? People get “disparate treatment” all the time, you know. Even from gummints. Some people are denied licences/jobs/benefits/etc., all on account of gummint rules and procedures. And the election procedures at issue had been used for a hundred years or more (and are still used). Have we had more than a century of illegitimate government because essentially every election has been undertaken using such deeply flawed procedures?
The dissenting justices can speak only for themselves and their court, but IIRC, they were pretty much of the opinion that there was no issue for the U.S. Supreme Court to trouble itself with (keep in mind that the “EP” hook came as a bit of a surprise to many people awaiting the decision, the primary hooks for the Dubya camp seeming to be the 3 USC § 5 and Article II claims, both dismissed forthrightly by all the dissenting justices and at least a couple of the per curiam authors).
Dubya may have had standing to bring the dubious 3 USC § 5 or Article 2 claim (although this is debatable), but under standard EP doctrine, is not the proper plaintiff for an EP claim.
Cheers,
April 2, 2010, 11:56 amzuch says:
Said latter population can reasonably be described as psychotic, severely misinformed, or both. But where do you get that this “virulent opposition” is a significant number (outside of those that also think that Obama is a Kenyan Muslim al Qaeda sympathiser)?
But I’d note that Prof. Somin didn’t say just “unpopular”. He said “highly unpopular”. I think some people place more credence in Rush Limbaugh and FauxSnooze than they should.
Cheers,
April 2, 2010, 12:04 pmGulf Coast Bandit says:
Bush v. Gore happened 10 years ago. Get over it.
April 2, 2010, 12:09 pmAnonsters says:
Wickard v. Filburn happened 66 years ago. Get over it.
April 2, 2010, 12:12 pmShelbyC says:
Aren’t you comparing stats showing that Georgia may have discriminated against other defendants with stats limited to the effects against W. himself? Sounds like apples and oranges to me.
April 2, 2010, 12:30 pmDuffy Pratt says:
The standing argument you raise strikes me as a bit off the mark. But this might be what passes for standing doctrine today.
Suppose I enter into a licensing agreement with a company that has a patent pending on some process. Now that I have the agreement, I decide to sue over the validity of the patent. By your reasoning, I’ve been injured because I paid for the license. And the cause of the injury is the patent application. Yet, it seems pretty obvious to me that such a case would be dismissed for lack of standing, and also probably on ripeness grounds.
But here you say that there is standing for people who will buy health insurance. Where is the injury? Yes, they pay money for insurance. But that is simply an exchange. Whether someone is injured by this exchange will depend on the results. Suppose the plaintiff paid $1000 for insurance and then quickly received $20,000 in payouts for some procedures? Is that plaintiff injured? Basically, on this theory of injury, anyone who has entered into any contractual agreement immediately has standing to sue on the validity of a contract. Moreover, anyone who obeys any law has standing to sue over the validity of that law. I know standing requirements have gotten more lax, but I don’t think they have sunk to nothing quite yet.
The way a case should arise here is if someone refuses to meet his obligations under the mandate. The government then proceeds to act adversely to him, and the controversy arises that way. I know that may be a bit old fashioned.
Also, under your hypothetical, how does a court distinguish between people who bought insurance because they felt compelled, and simply because they wanted insurance?
Finally, I think you draw too much of a distinction between standing and ripeness. Ripeness often is simply another way of saying that a person does not yet have standing.
April 2, 2010, 12:45 pmzuch says:
No. Because Dubya has no standing to assert an EP claim based on supposed “vote dilution” (not being a Florida voter), the actual party of interest is some Florida voter (actually, all Florida voters). And their claim is just as nebulous in terms of effect on them and in terms of who was responsible for such as was McCleskey’s, if not more.
Cheers,
April 2, 2010, 12:51 pmzuch says:
Furthermore:
He never showed any such thing (even if such could give rise to an EP claim, which it doesn’t).
Cheers,
April 2, 2010, 12:55 pmShelbyC says:
Well, if he was asserting the Florida voter’s claims he wouldn’t have had standing and the court wouldn’t have had jurisiction. IIRC he was asserting that the lack of equal treatment for Fla voters harmed him, no?
April 2, 2010, 12:57 pmHere Come the Lawyers, Part 3 says:
[...] Somin has a great post analyzing the questions of standing and ripeness for the lawsuits. As Somin explains, The really [...]
April 2, 2010, 1:29 pmSarcastro says:
[Another good example of suspicious standing might be United States v. Hays.]
April 2, 2010, 1:31 pmzuch says:
Covered above (here and here).
It’s hard to tell from the mish-mash of ‘arguments’ made by Dubya, but the answer should be no: Dubya has no standing to assert an EP violation. His vote was not being diluted (and that’s the best that could be argued from the supposed “facts”). He has no right to have Florida voters vote for him, or to have Florida voters who voted for him counted for more. The right inures to the Florida voters and no others; they have the right to chose their electors and not Dubya (not to mention, the electors chosen by the election are not constitutionally bound to cast their votes for Dubya either; despite Florida law to the contrary, I suspect that an elector could choose, when push came to shove, to ignore the required oath and find some support for such a requirement as to actual vote being unconstitutional).
Cheers,
April 2, 2010, 1:33 pmShelbyC says:
I’m not sure why he’d have less standing than the beer vendor in Craig v Boren, where it was illegal to sell 3.2 beer to males under 21, but OK to sell to females.
April 2, 2010, 1:52 pmzuch says:
This was all explained. See pages 192-197 of the decision [Craig v. Boren, 429 U.S. 190, 192-197 (1976)]. Dubya was in no similar position in being compelled or coerced to engage in discriminatory behaviour himself (and there were other, prudential, reasons for affording Whitener standing as well, which they discuss).
Cheers,
April 2, 2010, 4:38 pmShelbyC says:
Not at all. What they explained was that in some cases there are prudental reasons to limit third party standing, but none were present wrt Whitener. Are you suggesting that there were prudential reasons to limit W’s third party standing? There’s probably a good argument either way on that one, but nothing definitive.
April 2, 2010, 5:04 pmzuch says:
What they explained was that [from the synopsis, to avoid tedious quoting]:
See that anywhere in Dubya’s intervention? Did any law require (or forbid) anything of Dubya that he had grounds to complain about?
Cheers,
April 2, 2010, 6:46 pmShelbyC says:
The bolded portion of your cite simply established that Whitener suffered “injury in fact”, an element for art. III standing. Dubya also would have suffered injury in fact. What you’re citing doesn’t create any stricter requirement than that.
April 2, 2010, 6:56 pmShelbyC says:
in any event, W’s “injury in fact”, that of being denied the presidency, resulted from the aggregate effects of Florida voters being denied EP. McCleskey’s didn’t result from any aggregate effects. That makes the comparison of the usability of stats apples and oranges.
April 2, 2010, 7:14 pmBobVB says:
Does anyone else just not bother to read articles that start off with the right-wing pejorative term ‘Obamacare’ in the title?
April 2, 2010, 7:35 pmChris Travers says:
I would go quite a bit further than this. There are two major issues with reducing standing requirements: res judicata and related doctrines, and undue power for the courts.
The undue power argument you make is a good one. I would point out that the largest structural difference between the government of Iran and the government of the US is that the Iranian judiciary has the power to pre-emptively strike down legislation it doesn’t like. If you want an all-powerful court, go visit Iran…..
The res judicata issue though is a far more insidious problem that gets very little coverage in this discussion. The problem here is that generally, you can’t relitigate facts decided as an essential part of a previous case. So, a party can reduce liability by ensuring that sweetheart lawsuits are brought which establish a favorable fact record and make legitimate lawsuits far harder to prosecute. Consequently, reducing standing requirements would generally likely have the inverse effect to the one that folks who argue for this seek: it would make it HARDER to bring about legitimate lawsuits due to actual injuries…..
April 2, 2010, 8:13 pmShelbyC says:
Wait, different parties can relitigate those facts, no? So if a fact is decided in favor of Party A and against Party B, Party C could re-argue that fact against Party A, but Party B couldn’t re-argue it against Party C. So if Parties A & B are sweethearts, that doesn’t affect Party C’s claims, correct?
April 2, 2010, 8:26 pmarbitrary aardvark says:
Ripeness: Big companies doing business in the 14 states have taken large charges to account for anticipated expenses. This affects their tax posture in the states. So the states’ claim is ripe.
April 2, 2010, 9:56 pmStanding: is there any procedural bar to filing a case against the federal government in a state court? Many states have no standing requirement; standing comes mostly from the article III case or controversy requirement.
zuch says:
Bulltwaddley. Not to mention, Dubya had no stats. Period. Dubya’s “injury in fact” wasn’t due to his having to abide by an unconstitutional restriction on his behaviour or face penalties, unlike Whitener (as the opinion explained, but you ignore).
Cheers,
April 2, 2010, 11:31 pmhaha rimshot says:
Capable of repetition, but evading review?
April 3, 2010, 2:07 amDavid M. Nieporent says:
No, you didn’t. You showed that two entirely different situations were treated differently, but you’ve never shown a case where conservative justices denied that disparate treatment was a violation of equal protection. This whole “statistical” argument is a red herring, as it has to do with an issue of evidentiary standards not present here, not a question of whether equal protection is required.
Do I deny that conservative justices (not the same 5 as in BvG) rejected McCleskey’s claim? Obviously not. But you are wrong about what the Court held in that case. It did not hold that statistical evidence could not be used to prove discrimination in violation of the EP clause. It held that the statistical evidence presented by McCleskey (the Baldus study) did not prove discrimination in violation of the EP clause.
And none of this is relevant to BvG, where the discrimination was overt, and did not need to be inferred from statistics.
That doesn’t make any sense as a rebuttal. The point is, the EP clause has been interpreted very broadly by the Supreme Court, even in situations when conservatives may have argued it should have been interpreted narrowly. If Rehnquist follows those broad precedents rather than his previous (losing) positions, that doesn’t reflect inconsistency, but simply stare decisis.
No; you’ve merely asserted it. You haven’t identified even a single case even remotely similar.
A tendentious set of questions that don’t have any relevance to the facts at issue. (1) Bush (*) did not “show only disparate outcomes.” (2) There was nothing “speculative” about what the Florida Supreme Court’s order would say; it had already ruled. (3) Conservatives did not hold in McCleskey or elsewhere that showing that blacks that got treated differently “get no relief.”
(*) Incidentally, if some whiners think the phrase “Obamacare” is a reason not to take an argument seriously, then using “Dubya” is even more obviously a reason not to take you seriously.
1) The Court wasn’t psychic. The events had happened. 2) The disparate treatment was the different standards applied between, and even within, Florida counties in evaluating ballots, as ordered by the Florida Supreme Court. 3) Of course people get treated differently — when they’re differently situated. If you know two people, one of whom was denied a license (or benefits) and one granted it, despite being identical, let their lawyers know.
No. The relevant election procedures at issue — that is, the recount procedure as ordered by the Florida Supreme Court — had not been used before. (By the way, what happened to the argument that the events hadn’t happened and the Court had to be psychic? Now you’re arguing that they happened for a hundred years? Boy, what inconsistency!)
Nonresponsive. You claimed that Bush had no standing to raise the issue, and implied that the court should have rejected his argument on those grounds. None of the participants agreed with you. Gore did not even raise the issue, and not a single justice — not liberals, not conservatives — did either. I don’t say they rejected it. I said that they didn’t raise it at all. Nobody thinks it’s an issue except some semi-anonymous internet commenter nicknamed Zuch. Judges do not ignore standing because they are “of the opinion that there’s no issue for the court”; they do not reach merits if there’s no standing. And yet not a single justice thought that.
Signing onto Gore’s opposition papers were, inter alia, Lawrence Tribe, David Boies, & Thomas Goldstein, as well as other less prominent but very accomplished supreme court litigators. Not one noticed that Bush didn’t have standing. Did they all commit malpractice?
But standing is jurisdictional; even if Gore failed to raise it, the justices were required to address it, if it were at issue. Not one of Stevens, Ginsburg, Breyer, or Souter did. Not one said, “Hey, wait.” Each one wrote his/her own opinion, so even if one justice somehow missed it and didn’t bother to talk to the other dissenters, another could have caught it. None did. Were they all derelict in their duties? Or are you utterly wrong on the point?
April 3, 2010, 9:12 amChris Travers says:
I always thought that res judicata and nonmutual collateral estoppel were limited to:
1) Facts determined to be essential elements of a case and
2) where no change of circumstance has rendered the facts inapplicable
Depending on your hypothetical, wouldn’t it be a matter of both of these?
Let’s take a hypothetical here:
Ok, suppose four people slip and fall on the floor of my shop within a short period of time (and all witnessed by the others). Fairly quickly one of them sues me. Over the course of the trial, the findings include a fact that the wet floor was well marked and that verbal warnings were issued to everyone who fell before it happened. On the basis of that, I am found not liable for the damages.
Now, suppose shortly before the statute of limitations expires, one of the other one sues me stating that the wet floor was not marked at all, and no verbal warnings were issued. Which facts could be re-litigated and under what circumstances?
IANAL but I always thought that this meant that the second lawsuit would have to argue that either the finding that the wet floor was well marked was not central to the previous case (but it was) or else that differences in circumstances rendered that previous finding inapplicable (for example that although the wet floor was well marked regarding the approach of the first plaintiff, that I was negligent by not marking it in a way that the second plaintiff could see as he/she approached from a different angle). Am I wrong here?
April 3, 2010, 1:18 pmThe Golden Gate » Article » Obamacare | Constitutionality Round-up says:
[...] Zywicki starts off another post on Standing and Ripeness with this: Ilya notes the standing and ripeness issues in the health care suits. A few weeks ago, Virginia Attorney [...]
April 4, 2010, 2:15 pmzuch says:
Not true. From the Gore brief:
It is not at all surprising that the respondents here would also address the issues on the merits in such a politically charged case (you don’t want to rely solely on such abstruse and technical concepts as “standing” to ‘win’ such a case, and any good lawyer will also address the merits), but that hardly makes the issue of standing go away.
More to come.
Cheers,
April 6, 2010, 1:33 pmzuch says:
Three of the five (Rehnquist, O’Connor, and Scalia) were also in the majority in McCleskey. You’re looking for inconsistency and claim I don’t show it. I need provide only one justice; here’s three.
But McCleskey said that statistical evidence of disparate impact (which there inarguably was) was not sufficient: you must prove invidious intent:
The standard is high:
Arlington cites Yick Wo for such a case where the there is no other possible explanation except invidious intent for the results. As such, statistics or other such evidence of disparate impact alone have a very high bar to clear to be allowed as proof of invidious (and impermissible) intent.
The fact remains that Dubya didn’t (and couldn’t) show any such “discrimination”, much less “invidious intent”, despite your claims to the contrary. Absent that, his “equal protection” claims must fail.
My point is that Rehnquist et al. have a long-standing antipathy to such claims, rejecting “statistical” evidence of disparate impact except in “stark” cases (and even here, Rehnquist didn’t decide Yick Wo), and has even signed on to opinions rejecting such (e.g., McCleskey and Washington), and is hardly upholding prior precedent (much less stuff he signed on to) in finding “discrimination” here, absent both any statistical evidence of “discrimination” and “invidious intent”.
I agree that Dubya didn’t show any “disparate outcome” (he couldn’t). But he certainly didn’t show “invidious intent”.
The Florida Supreme Court ruled that all counties should have manual recounts done (under one judge, who should develop procedures to ensure fairness and uniformity, and whose decisions, once they had been made, could be challenged if found legally lacking or incorrect). But it’s impossible to say absent some actual facts that such counts would have had the procedural deficiencies alleged (claims that such couldn’t be possibly be done is saying in effect that every election in the United States is an EP violation). This is what was at issue. Not the previous few county results. Even were the previous individual county results suspect, the remedy would be to redo them along with the rest of the state, not to stop the counting across the whole state that would have cured (as best as could be done) the “disparate” treatment of certain counties (which halt is what Dubya asked for and got). What Dubya asked for and got was the freezing in place of the previous counts that caused the very “equal protection” problem he claimed to be so concerned about. The certified results left in place included the Broward counts, the “stealth” manual counts in Republican-leaning counties, and the partial M/D results). This is what was so fundamentally dishonest about both the Dubya petitioners argument and the per curiam remedy: It caused the very (alleged) “equal protection violation” that they claimed to find so abhorrent.
They did say that “disparate outcomes” “get no relief”, absent more (and even then, it’s not even clear that disparate outcomes are necessary to an EP claim).
The events that court enjoined hadn’t happened. Breyer pointed this out by saying that any problems that might arise should be addressed (by the Florida courts) “if and when it was discovered to have mattered”. As I said, if the court was concerned about events that had already taken place, they picked a unique way to show it (by mandating that this status quo remain in place). You can’t meaningfully talk about “disparate treatment” and “different standards” for events that hadn’t even occurred (and in fact were blocked by the court from occurring, thus putting to the lie the assertions of the per curiam.
Nonsense. Both recounts and manual counts were standard practise. Also standard practise was the “intent of the voter” standard, as evidenced by the case where a manual recount was ordered for ballots ‘technically illegal’ because the people had filled them out with pens rather than No. 2 pencils that could be counted by the scanners of the day. As the respondents pointed out also, many states have an “intent of the voter” standard, including Dubya’s Texas, where even the famous “dimpled chads” are considered such “intent”.
There’s no inconsistency, BTW: The procedures (manual counts, “intent of the voter”, etc.) have been used for many years, both in Florida and elsewhere with no constitutional problem, and would have been used (and probably, given the scrutiny, in the fairest way possible) in the counts that were about to take place and which were enjoined.
If the counts had been allowed to continue, then Dubya might have had a factual basis for making his claims about impropriety … but he would have lost, seeing as the procedures would have been pretty much the same as any election in recent history, and wouldn’t have shown anything like an “equal protection” violation.
Cheers,
April 6, 2010, 4:05 pmAre Right and Left Changing Where They Stand on Standing? | theConstitutional.org says:
[...] that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court i… (much to the delight of most [...]
August 19, 2010, 3:57 pm