In my last post, I explained why conservatives and liberals may be changing their traditional positions on standing. In this one, I briefly explain my view that “constitutional” standing requirements are both a bad idea and not required by the Constitution. Right from the start, I should emphasize that my argument only applies against claims that the Constitution imposes strict standing requirements on litigants who want to file a lawsuit arguing that some government action is unconstitutional. I don’t deny that Congress has the power to impose standing requirements for litigants who want to file suits under a federal statute; Congress can even enact statutes under which no private individuals have any right to sue at all.
I. Text and Original Meaning.
Let’s start with the text of the Constitution. The provision of the Constitution usually cited as the source of standing requirements is Article III’s grant of federal judicial power, which gives federal courts jurisdiction over “all cases… arising under this Constitution and the laws of the United States.” It’s hard to see how this justifies the modern standing requirement that litigants must have suffered a past or imminent material injury caused by the statute they claim is unconstitutional. Nothing about the word “case” suggests that it is limited only to claims involving narrowly defined injuries. Even if you can’t have a “case” without such an injury, you can certainly have a “controversy” without it. And Article III also gives federal courts jurisdiction over “all controversies to which the United States shall be a party,” controversies between a state and citizens of another state, and controversies between citizens of different states. At the very least, therefore, restrictive standing requirements should not be applied to challenges to the constitutionality of federal laws.
Perhaps “case” and “controversy” were eighteenth century terms of art that required a narrowly defined harm as a prerequisite for standing. But the historical evidence doesn’t support any such claim. To the contrary, standing requirements in the early Republic and the 19th century were extremely loose (see pp. 13-15 here for a helpful summary).
Perhaps “case” and “controversy” do require a litigant to prove that he has suffered some kind of harm that can be redressed by a judicial ruling. But even if so, the harm that all citizens suffer when public resources are expended for unconstitutional purposes should be sufficient. For any given individual, that harm may be small. But the same can be said for extremely small direct monetary losses that are enough to justify standing even under the most restrictive interpretations of modern standing doctrine; for example, the imposition of a $1 fine is universally considered sufficient.
II. Pragmatic Considerations.
The main pragmatic argument for modern standing restrictions is that they are supposedly needed to prevent the courts from being drowned in a flood of frivolous lawsuits. But judges have many other tools for disposing of frivolous cases. For example, they can be swiftly dismissed for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As a practical matter, dismissing a frivolous case under Rule 12(b)(6) is not significantly more difficult and time-consuming than dismissing it for lack of standing. Defendants routinely brief both issues anyway. In extreme cases, attorneys who bring frivolous suits can be sanctioned under Rule 11.
Moreover, if allowing lawsuits for nonmaterial harms will lead to a flood of frivolous litigation, it’s hard to see why we haven’t seen a similar flood as a result of the fact that current standing doctrine allows lawsuits for very small financial harms, such as the loss of even a single dollar. The answer, of course, is that few litigants are willing to pay the cost of filing suits that are doomed to near-certain failure.
The real purpose of “standing” doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on “generalized” grievances that affect a large number of people. But the fact that an unconstitutional law harms many people (even in a diffuse way) makes it all the more urgent that courts be able to strike it down.
A different practical concern is that important constitutional precedents should not be set by plaintiffs who don’t have a stake in the outcome great enough to incentivize them to litigate the issue effectively. But modern standing doctrine does a poor job of sifting out “low-quality” litigants. Many of the most important cases in our constitutional history were brought by organizations whose main motives were moral or ideological. Even if they were able to find clients who met the requirements of standing doctrine, the injuries suffered by those individuals were not the main reason for bringing the case. The civil rights cases litigated by the NAACP are the best-known example. In some instances, such as the important civil rights and property rights case of Buchanan v. Warley, the claimed injury was essentially manufactured for the purpose of bringing the suit. It makes little sense to exclude litigants with strong ideological or moral commitments, but permit those with small financial stakes. The former class are, on average, probably more motivated and capable than the latter. If low-quality litigants are a problem, standing doctrine is a bad solution.
Given the extensive accumulation of precedent, it may be unrealistic or imprudent to simply junk standing doctrine immediately. But courts can certainly move in the direction of gradually loosening its requirements. In recent years, the Supreme Court and many lower courts have already begun to do that, in cases such as Massachusetts v. EPA, and now the Virginia challenge to the health care mandate.
Orin Kerr says:
I would guess that one’s views of standing doctrine roughly reflect one’s views of the merits of judicial restraint versus a more active judicial role. For example, Ilya believes in a pretty aggressive judicial role, and he opposes existing standing doctrine; I favor judicial restraint, and I favor existing standing doctrine.
That may explain why Ilya says that “[t]he real purpose of ‘standing’ doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge.” That accusation largely resembles Ilya’s views of the problem with judicial restraint more generally. In contrast, proponents of judicial restraint tend to say that standing is a critical aspect of the separation of powers by limiting the role of judges who may otherwise interfere improperly with the work of the elected branches.
August 19, 2010, 1:12 amChris Travers says:
I see it as slightly different. I think (IANAL) that standing has a number of functional purposes. These all stem from the necessity to keep the bar raised for entry to the courts. They include:
1) Prevention of frivolous suits
2) Prevention of collusive suits to establish matters of law which prejudice other parties.
I am far more worried about the second than I am the first.
Obviously there are problems with the way standing is currently approached and I think it’s a good idea to work on correcting these problems. I think that this means keeping strict standing requirements in MOST cases, but where cases are more difficult to bring due to standing issues (as in this case) find a reasonable way to expand standing so that someone somewhere at least has standing.
I am not opposed to making it difficult to bring a meritorious suit. I just think there is a major difference between difficult and impossible. In other words, I don’t think courts should shy away from the duty to interpret the law just because no possible plaintiff might be able to satisfy some sort of strict standing requirement.
August 19, 2010, 1:24 amMike Rappaport says:
On the history, you might want to have a look at a paper that Ann Woolander and Caleb Nelson published a couple of years ago. It reviews the 19th century evidence, which is obviously second best, but it does suggest that these standing ideas go back pretty far. I don’t claim it proves anything, but the history is more complicated than normally suggested.
August 19, 2010, 2:06 amPersonFromPorlock says:
May not the real purpose of ‘standing’ doctrine be to keep judges from having to work harder?
August 19, 2010, 5:48 amJoe Schmoe says:
Interesting analysis. I quibble with your notion that frivolous cases can “swiftly” be dismissed under Rule 12(b)(6). That is very far from reality. It is not easy to get federal cases dismissed, even after Twombly/Iqbal, and many cases that reasonable observers would deem frivolous end up creating massive costs for the parties and the courts. Standing, when it’s an available argument, is often a “cleaner” way to try to dismiss such cases because it is a more confined legal question. Judges tend to have an inherent bias towards letting cases get to discovery so that they are not cutting off a litigant’s opportunity to pursue a claim (even if success seems remote), and standing is a narrower question that judges are more likely to resolve without those creeping concerns that factfinding might uncover something meritorious.
August 19, 2010, 8:23 amJustin says:
::claps::
August 19, 2010, 8:36 amDuffy Pratt says:
None of us grew up in the era of pleading before the sweeping change in the Federal rules. Before then, as I understand it, Courts typically worked on a writ system and single issue pleading. I don’t think anyone had even heard of the declaratory judgment. There may not have been a separate, well developed standing doctrine at that time, largely because the standing requirements were also built into typical pleading requirements, so that the Constitutional issue of standing simply didn’t come up.
August 19, 2010, 9:19 amORID says:
In regards to standing, let me say that I hate this line of jurisprudence:
I think modern standing jurisprudence is where it is because of previously poor pleadings. However the way they framed their injury was incorrect. Pleadings, and injury-in-fact must be precise. I’m going to make a comment about my individual rights under the Constitution and then apply it to cases where the Supreme Court says we don’t have the general right to ensure the Government administered according to the law.
No one can bring a suit to force the Executive Branch to act if they are simply passive and not following the law. However, once the Executive Branch operates, it must operate within the Constitutional confines of Article I and Article II. If the Executive Branch exercises authority in a way outside of Congressional or Constitutional grants, it is clearly violating both Articles I and Articles II.
However, “failure to follow the law” wouldn’t be the injury. The injury would be traceable to voting rights. Right now current jurisprudence doesn’t recognize the power of “We the People” ie. the voters. I don’t know why but I think it is because no one has attempted to break down the door with a well-pleaded complaint. As I understand it, there appears to be a myth that “voting rights” means we get to cast a ballot, but there are no further protections on the voters from Congressional and Executive over-reach (particularly executive over-reach). I don’t believe this is true, yet if the Courts were to spontaneously recognize this, it may wreck havoc on the Executive branch.
My Article I and Article II voting rights don’t end when I cast my ballot. My voting rights not only ensure I case my ballot, but they also guarantee that the position I’m voting for doesn’t change. In other words, (and this is always implied), I have an individual right to vote for the Article I Congress, and the Article II Executive (provided my state votes in this manner, which I believe all of them do, see Bush v. Gore discussion). Any action by the Executive Branch not undertaking under Congressional grants of legal authority or Article II powers are plainly unconstitutional, because they violate my voting rights.
Any thinking that says, “making sure the law is followed is a job for Congress” is bogus. Taking that to it’s fully conclusion would means that Article II powers could be changed and the Executive Branch can make up their own legal authority only at the whim of Congress. That is, my Article I and II voting rights are not protected by Article V, and presidential powers can be expanded due to Congressional inaction (and only Congress could stop it).
So let’s go back to the jurisprudence I quoted: Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law. When it comes to voting rights, its widely accepted that voting rights are the bedrock of our democracy. So while it may be true that government action outside of the law only violates my “general right”; it more personally affects my voting rights.
I think this would clearly mean any voter would’ve had standing to challenge Youngstown. I’m not sure however, if it would apply to the Lujan plaintiffs. They can’t force the Executive Branch actors to consult with them.
Here’s a hypothetical: let’s say Congress passed a spending bill that says, the Secretary of Defense must buy 100 Joint Strike Fighters. Let’s say instead of doing that he bought 100 F-15′s. Clearly the law hasn’t been followed, but more to the point he’s acted outside of his legal authority in fact claiming that he can make up his own legal authority (this actually might be a bad example because I bet the President may claim it is within Article II powers to protect the nation). I think a voter could challenge that executive action by pleading damage to voting rights and gain standing. Simply because the Executive Branch cannot expand its powers. Of course if the President wanted to he could buy the 100 F-15s due to executive immunity, right (although he couldn’t grant an Executive Order, he would have to push all the right buttons and do whatever it is that the DoD does to purchase those planes personally).
But if he refused to buy any JSF, no voter could force him to buy a single plane.
Maybe there is some jurisprudence or some mis-understanding I have of standing and this type of situation.
I’m vexed as far as the Constitutional requirements. For instance, it appears a state can elect Senators who are 25, yet no individual could challenge it.
* Edit to add: My focus is mainly on challenges to executive action outside of the law (ala Youngstown).
August 19, 2010, 9:20 amCiarandDenlane says:
God forbid we should get stuck with another Henry Clay in the Senate
August 19, 2010, 9:47 amMark Field says:
While I tend to favor broader standing, this statement is certainly true. I don’t know if this is fair to Prof. Somin, but in my experience academics are unaware of just how hard (and expensive) it can be.
Perhaps that would change if standing were broader, but all that means is that “frivolous” would become more broadly defined in order to function as a more significant gatekeeper. I’m not sure if that’s a win.
August 19, 2010, 9:50 amCMH says:
Yeah, compromise is overrated.
August 19, 2010, 9:54 amMartinned says:
That’s a case that the constitution reserves for another body, i.e. the Senate itself. Same as the House of Commons in the UK, the houses of Congress adjudicate the right of their own members to sit. In the case of JFK’s maternal grandfather, for example, the House of Representatives not only ruled that his election was invalid, but actually seated his opponent in his place.
August 19, 2010, 9:57 amL says:
On a completely non-legal note, it looks like you haven’t closed a tag near the end of this post. It’s italicizing a lot of stuff that wouldn’t normally be italicized (including the titles of following posts down the page).
Thought you might like to know.
August 19, 2010, 10:04 amORID says:
So are much of the Clauses in the Constitution unconstitutional, or moot?
That seems to be the result of this jurisprudence (I’m quoting the trial court in Berg v. Obama):
These decisions include the somewhat rare cases that have reached the Supreme Court where plaintiffs allege constitutional harms (other than taxpayer standing under the Establishment Clause of the First Amendment) that affect broadly-defined groups of citizens or voters. (holding that Colorado voters did not have standing under the Elections Clause of the Constitution, art. I, § 4, cl. 1, to challenge a provision of the Colorado constitution limiting the state’s congressional redistricting to once per census); Ex parte Levitt, 302 U.S. 633, (holding that a citizen did not have standing to challenge appointment of Hugo Black to the Supreme Court under the Constitution’s Ineligibility Clause, art. I, § 6, cl. 2); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, (holding that an anti-war group did not have standing to invoke the Incompatibility Clause, art. II, § 6, cl. 2, to have members of Congress stricken from the Armed Forces Reserve List); United States v. Richardson, 418 U.S. 166, (holding that a taxpayer did not have standing to obtain information about the expenditures of the Central Intelligence Agency under the Constitution’s Accounts Clause, art I, § 9, cl. 7).
I actually *think* I agree with the Court, but might be a little confused regarding the Colorado voters clause. However if the Colorado voters have changed the constitution of that state, I don’t see why they could challenge it to overturn *legislative action*.
Why is taxpayer standing under the Establishment clause distinct? I actually think taxpayers have *more standing* than we contemplate due to the “taxpayer nexus” test articulated in Flast v. Cohen and upheld in Hein (which left Flast as they found it). Certainly the fact that appropriations must be approved by Congress and pursuant to a law are a Constitutional limitation on the Executive responsibility of the “tax and spending” power.
We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.
Otherwise, no President would need any Congressional appropriations, they would simply need “lump appropriations” and can spend freely outside of any pot described by Congress.
August 19, 2010, 10:15 amA.W. says:
Well, i think the big conceptual problem here, too, is that the stance is very different from most standing cases.
Most of the time, the standing case is about the ability of a person to sue.
This is about the ability of a person to defend.
For instance, take those classic taxpayer standing cases. there they are almost like that mocking definition of a puritan, concerned that someone somewhere is violating the constitution.
i mean Jerry Brown undeniably would have standing if he wanted to appeal it. But what is his standing supposed to be based on? a desire to see the california constitution followed? Well, why on earth would Jerry Brown have a greater interest in that, than the proponents of prop 8 or even the average cali voter? in fact, given that the initiative process is specifically designed to allow the people to go over the heads of the politicians, it contemplates exactly what we have here, a case where the people want a thing that the politicians do not.
I think a very rational distinction can and should be drawn between standing to sue, and standing to defend a suit. i can’t think of a case that made that distinction, but this result demonstrates the need more than most. And its the only way to respect the constitution of california. Because if you hand the governor and AG a veto over any law they don’t like, that defeats much of the purpose in creating an initiative process in the first place.
But what is his material harm? Its hard to see how he is harmed very much more than the proponents. His interest is in seeing the california law upheld if valid.
August 19, 2010, 10:21 amGuy says:
I agree, I personally favor relaxed standing rules because I’ll admit I’m a fan of judicial supremacy. However, I can’t reconcile my preferences with the structure of the Constitution, which is why I think the current standing doctrine is right (EPA v. Massachussetts was wrongly decided, in my opinion, though I liked the outcome). I just can’t believe that the framers intended the courts to be able to rule on any abstract question of law that someone wanted to have answered. The existence of declaratory judgment strikes an excellent balance.
August 19, 2010, 10:21 amGuy says:
I can’t agree, not unless the remedy or issues decided are such that the Due Process Clause would require personal jurisdiction, in which case a person would clearly have standing to appeal.
August 19, 2010, 10:24 amGuy says:
I think you’re mistaken, state defendants are sovereigns whose ability to act is restricted by the injunction.
August 19, 2010, 10:25 amGuy says:
Oops! dyslexia, Massachussetts v. EPA.
August 19, 2010, 10:38 amDerHahn says:
I rarely agree with Orin Kerr but I have to say that he makes a very good argument against depending on dismissal to police frivolous cases.
There is little evidence now that judges are willing to use dismissal and sanctions to keep the bar in line. Some of that might be due to the standing rules but I really don’t see how you could claim the situation would get better if the standing rules were relaxed.
August 19, 2010, 10:44 amBleh says:
I’m not sure I agree with this. But I do agree with all of your other points. IMO standing requirements should be relaxed for constitutional issues.
EDIT: Just saw Professor Kerr’s comment. I would tend to agree with him more as to the “real purpose” of standing requirements. Also with the comment that one’s opinion on this has a lot to do with their views on judicial restraint.
August 19, 2010, 10:56 amUrso says:
His offhand reference to Rule 11 is what really sealed it for me. The idea that a judge would issue Rule 11 sanctions upon dismissing a lawsuit for lack of standing is so far afield from real world experience it could only have been written by a professor.
August 19, 2010, 11:03 amGuy says:
This is a little off-topic, but I take it from this you think Bivens is federal common law, not a Constitutional cause of action? I think the Due Process Clause of the Fifth Amendment generates some minimal right of access to federal courts. Certainly the Suspension Clause, at a minimum, protects the right to petition for a writ of habeas corpus (or an adequate alternative remedy).
August 19, 2010, 11:08 amMark Field says:
No, this is wrong. The issue regarding the intervenors is whether they have standing to appeal (i.e., to begin proceedings in the appellate court as plaintiffs do in District Court). Defendants don’t need to show standing.
August 19, 2010, 11:21 amGuy says:
Well, there was the Orly Taitz sanction, but that’s not typical, and it took a lot of failed lawsuits before the courts got fed up.
August 19, 2010, 11:23 amUrso says:
Not to mention some instances of flat out fraud on the court, which is the only cut and dried sanctionable conduct – knowing misrepresentations of fact, and you’re usually given at least one chance to recant.
August 19, 2010, 11:25 amGuy says:
Of course, as the Orly Taitz scenario shows, standing also protects the courts’ interest in remaining “aloof”; courts have a right not to be transformed into a forum for political show trials against their will.
August 19, 2010, 11:28 amfrankcross says:
Ilya, I’m in your camp on broad standing but I think you miss the real reason for the doctrine, which is something like prosecutorial discretion. Lots of laws are written where it would be fairly oppressive to apply them literally and indiscriminately. I think this is Scalia’s basis in the environmental cases. Denying standing leaves the government discretion not to apply them in some cases where they might be deemed unreasonable, preventing private parties from doing so.
It’s sort of an interesting conflict for libertarians. Standing doctrine limits the impact of government regulation in general (not always). But it also empowers the Executive with more discretion about who to let off the hook, and trust in government enforcement is not beyond question.
August 19, 2010, 11:33 amAnderson says:
The idea that a judge would issue Rule 11 sanctions upon dismissing a lawsuit for lack of standing is so far afield from real world experience it could only have been written by a professor.
Amen to that.
August 19, 2010, 12:04 pmGuy says:
Scalia’s a formalist, I don’t think he worries about oppressive laws so much as the separation of powers and something akin to the unitary executive theory. In particular, I think it’s another facet of his broader doctrinal goals of keeping the judiciary from getting involved in policy issues.
August 19, 2010, 12:14 pmfrankcross says:
Scalia’s not so anti-standing when conservatives are plaintiffs.
August 19, 2010, 12:37 pmGuy says:
Possibly, I think standing is sometimes unintentionally influenced by a judge’s opinion of success on the merits, though I can’t think of any broad standing positions by Scalia off the top of my head.
August 19, 2010, 12:42 pmA.W. says:
Guy
> I think you’re mistaken, state defendants are sovereigns whose ability to act is restricted by the injunction.
okay, hold it right there. WE THE PEOPLE are the sovereigns, not the governor, not the president or anyone else. Or well, in this case, the people of California are the relevant sovereigns (I think you think I am californian. i am not.)
And that is even more true in this case, because the amendment process cuts whom you call the sovereigns completely out. It is a method by which the true sovereigns in a republic, the people, exercise power over their servants, the state officials. You correctly state that this is a power best given to the sovereign; i agree. but the correct sovereign is the people, not the government.
And seriously who is being restriced from acting? Ahnold? he didn’t WANT to do this in the first place. his opposition to this law is the barest of formalities. Jerry Brown went to the state supreme court and tried to have it invalidated.
By comparison, the ability of the people to control the definition of marriage and to generally govern themselves have been restricted in a concrete sense.
Indeed, technically the injunction is not actually restricting Ahnold at all. It is telling him he must do something, not that he cannot. Of course I am sure it uses that bullsh– phrase “shall not refrain” to term it as a restriction, to meet that old congressional law on the subject that has been gutted in substance, but he is being commanded to act, not restrained.
August 19, 2010, 12:55 pmChris Bell says:
ORID says:
That is nonsense on stilts. Article I addresses Congress, not the Executive.
August 19, 2010, 1:02 pmGuy says:
That’s good rhetoric, but state defendants are the lawfully chosen agents of the people, and possess qualified immunity when acting in their capacity as executive officers, the same cannot be said for proponents. Besides, the core of my point is that they are restricted by the injunction, not that they acted with sovereign authority, which I noted merely as an emphasizer. Do you deny that the injunction does not bind proponents? In our discussion on the other thread, you didn’t point out any provision of California law or state court decision providing proponents with lawful agency to act on behalf of the sovereign people of California. It’s certainly not the case that proponents have lawful authority to execute the law, which of course, is an executive responsibility.
The injunction binds the state officials in a way which restricts their discretion, on pain of contempt. I don’t see why the distinction you draw is relevant.
Irrelevant, the injunction binds them whatever their intentions. And the fact that they enforced, and have continued to enforce, the law shows that they believe they are bound to enforce it unless a court order directs otherwise.
Then pass an initiative conferring agency on proponents of initiatives, allowing them to act with sovereign authority.
August 19, 2010, 1:12 pmADF Alliance Alert » The case against restrictive Constitutional standing requirements says:
[...] Somin writing at The Volokh Conspiracy: “I briefly explain my view that ‘constitutional’ standing requirements are both [...]
August 19, 2010, 1:17 pmChris Travers says:
Neither can I. I remember some discussion of this in some of the Bush-era detention cases, but now I can’t find them.
August 19, 2010, 1:28 pmL says:
One of the most amusing details about Taitz’ sanction was that her show cause was originally only for $10,000, and her response (as you say – her chance to recant) was so bad that she was ultimately fined $20,000.
August 19, 2010, 1:32 pmSteve says:
Huh? No you’re not.
August 19, 2010, 1:52 pmA.W. says:
Steve
> Huh? No you’re not [the sovereigns].
Yes we the people are. To quote from the Declaration of Independance:
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Emphasis added. If we the people have the right to alter or abolish our government then how the hell are we NOT the true sovereign?
August 19, 2010, 1:59 pmGuy says:
Well, as I said above (it’s marked for moderation, guess I made my response too long or something, so I don’t know if you can see it) the people of the state of California are the sovereign, but the proponents aren’t sovereigns, nor are they acting in a sovereign capacity. The state officials, on the other hand, are the lawfully chosen agents of the people, and are acting in sovereign capacity.
Also whether or not they are sovereigns isn’t really the important point, the important point with respect to standing to appeal is that proponents have neither the obligation nor the authority to execute the law, and they are not bound by the injunction or any other court order.
August 19, 2010, 2:04 pmBen says:
I don’t think judicial restraint, though, is an arbitrary concept that one can simply agree to disagree on.
Illya’s article actually highlights this nicely. Standing puts in a very concrete restriction on what can be brought before a court. Without standing, there really is no non-political limit.
This is the problem, generally, with the modern liberal view of government, that they don’t believe there’s any real limit as to what it can do. Of course, there’s a political limit, the existence of the conservative movement, but that really allows them to deny their own lack of restraint.
August 19, 2010, 2:20 pmSteve says:
As a matter of political theory, the government derives its authority from the consent of the people. That doesn’t change the fact that the government is the legal sovereign. That’s why the government, not “we the people,” goes around issuing parking tickets.
August 19, 2010, 2:24 pmA.W. says:
Guy
> Also whether or not they are sovereigns isn’t really the important point, the important point with respect to standing to appeal is that proponents have neither the obligation nor the authority to execute the law, and they are not bound by the injunction or any other court order.
Nah, they are just having their constitution nullified after they worked to amend it, having a veto right over the constitution. Their ability to control their own government is significantly limited, but who cares about that?
And i love that idea that the people are sovereign but not the proponents. It reminds me of the now-defunct collective view of the 2nd amendment, where it was argued that the people had the right to bear arms, but no actual person owned the right. So the people of California are sovereign, but no actual persons are.
of course i suspect all of this is academic, because I think what they will do is let imperial county in, and then the proponents are in as amicus. Either that or notice that the Cali S.C. gave them standing under state law.
The idea that federal procedure should absently nullify a portion of the california constitution relating to how it is amended, is nothing short of horrifying. that is not what federalism is about.
August 19, 2010, 2:31 pmL says:
Right, but do liberals believe there should be no such thing as standing as a control on what can be brought before a court, or do we just believe that standing should be broadly interpreted?
I’m a liberal, and I favor a relatively broad view of standing, but until I read this blog I had no idea the two went together. I think Somin has a somewhat good point with respect to the Virginia health care reform litigation – since I’m a liberal, you can guess what I think of the merits, but it would require a reversal of my position to think that the AGs don’t have standing. (Now, since I do think the AGs have standing, does that make me less of a liberal?)
But with respect to the Prop 8 suit – even a liberal with a broad view of standing is going to have a hard time figuring out how the proponents get there, if he has (as I do) any respect for Article III case-or-controvery requirements at all.
Short version: I think the liberal position on standing is broad, not unlimited.
If it’s limited, it’s limited by the US Constitution. And that’s okay.
If that were what happened, I could see how that might be horrifying. Fortunately, the provisions were nullified not because of how the California Constitution was amended, but because the amendment conflicted with the US Constitution. Which is exactly what federalism is about.
August 19, 2010, 2:48 pmGuy says:
Why are proponents sovereigns? Because they’re people? Well, so is Arnold Schwarzenegger, last I checked.
Prop 8 was a referendum on SSM. It was not a referendum on SSM + an election making proponents government officials. The people never consented to allowing this special interest group to represent them.
August 19, 2010, 3:04 pmJoe says:
an interesting note – in the Grutter V Bollinger case and the companion Gratz undergraduate case. The issue of standing came into play. In Gratz, the SC ruled that race preferences were unconstitutional (though said it was okay in Grutter). The interesting point is that in Gratz, Stevens and Souter, would have held that the undergraduate in Gratz did not have standing, but Grutter did have standing in the law school case, even though there was virtually identical fact pattern regarding the standing issue.
August 19, 2010, 3:05 pmGuy says:
What case? I asked this on the other thread. I don’t think it was Strauss, because the state defendants remained named parties throughout all the proceedings.
August 19, 2010, 3:06 pmA.W. says:
Guy
> Why are proponents sovereigns? Because they’re people? Well, so is Arnold Schwarzenegger, last I checked.
Agreed. So both of them have equal standing.
> It was not a referendum on SSM + an election making proponents government officials.
But state precedent says that this is the result. To quote the proponent’s request for a stay (which I have verified, correctly states the law):
> California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986).
> The people never consented to allowing this special interest group to represent them.
The people? you are now invoking the consent of the governed? The people never consented to have their constitution thrown aside without a wimper. The people never consented to give their governor and attorney general the right to veto their constitution.
L
> If it’s limited, it’s limited by the US Constitution. And that’s okay.
In which you confuse the difference between who has the right to defend proposition 8 before the federal courts, with whether that law is constitutional.
August 19, 2010, 3:17 pmGuy says:
Did you really verify that? I can’t find the actual opinion online, but according to plaintiff’s briefs that was dicta about whether proponents would have a right to intervene, and didn’t even discuss standing.
August 19, 2010, 3:24 pmGuy says:
So everyone in the state has standing in every lawsuit that can ever be imagined? I’m pretty sure that’s wrong.
August 19, 2010, 3:27 pmL says:
It was not virtually identical. Part of standing is redressability. Grutter was denied admission and sued, saying she still wanted to go to U of M Law, and asking them to change their admission policy. Gratz was waitlisted at U of M, withdrew, applied somewhere else, got in, and then sued, asking them to change their freshman admission policy. Hamacher (Gratz’ coplaintiff) was waitlisted at U of M, withdrew, applied elsewhere, got in, and then sued, saying he would transfer to U of M if they changed their freshman admission policy.
With Grutter, the relief sought would redress the injury. If the discriminatory admissions policy is changed, Grutter can reapply (or have her application reconsidered) and possibly get in. The relief sought by Gratz would have no effect on her life. She wasn’t going to apply at U of M again. With Hamacher, it’s a closer call – the challenge was to the freshman admission policy, which would not affect Hamacher as a transfer applicant. Also there was some suggestion that he might not have the gpa to be allowed to transfer anyway.
I’m not saying Stevens was right (especially wrt Hamacher). I’m just saying that when you mistakenly say the fact patterns are virtually identical, it sounds like Stevens was being unprincipled and arbitrary. But the facts were not virtually identical with respect to standing.
August 19, 2010, 3:30 pmGuy says:
The AG of California was elected by the people of California, so they did consent to his representation.
August 19, 2010, 3:30 pmJozxyqk says:
I am a person! A citizen of a state! This means I am a (the?) sovereign! I henceforth invoke my sovereign immunity and will proceed to park wherever I damn well please.
August 19, 2010, 3:39 pmfrankcross says:
If “we the people” are sovereigns just think what that means for sovereign immunity doctrine.
August 19, 2010, 3:40 pmJozxyqk says:
Beatcha, frank!
August 19, 2010, 3:45 pmGuy says:
If everyone in the state can act individually as a sovereign then gays can just issue themselves marriage licenses and impeach any government official who refuses to recognize it.
August 19, 2010, 3:47 pmA.W. says:
Guy
Yes, I verified it.
> So everyone in the state has standing in every lawsuit that can ever be imagined? I’m pretty sure that’s wrong.
Nope, but certainly when the state constitution gives to the people the right to act as the legislature, they have standing to defend their enactments.
> The AG of California was elected by the people of California, so they did consent to his representation
They did not consent to his veto over their constitution. Check their constitution. It never said, “and this constitution shall limit the powers of the legislative, executive and judicial branches, unless the governor and attorney general don’t feel like it.”
I mean let’s put this in relief. Suppose next that Californians amend the constitution to say that “no person related to the governor or attorney general, by blood or marriage, may hold any office in California state government.” So then Maria Shriver and Brown’s son (pretend he has one if he doesn’t) both sue for being denied employment without due process of law, stating that they want to apply for jobs with Governor Schwarzenegger and Attorney General Brown. So according to you, the only two people allowed to defend this constitutional amendment is… Arnold Schwarzenegger and Eugene “Jerry” Brown? You don’t see a problem with that?
Again the whole point of the initiative process is to give the people the power to change their constitution without the consent of Ahnold or Eugene, besides their rights as ordinary citizens. Your approach to federal procedure would render that a dead letter.
August 19, 2010, 3:50 pmL says:
You are right:
It also wouldn’t really be relevant even if it were about standing, because California law on standing governs access to California courts. Article III and federal law on standing governs access to federal courts.
August 19, 2010, 3:53 pmGuy says:
(Thanks L, need to renew my Lexis subscription)
A.W.
So how do you reconcile this?
L,
August 19, 2010, 4:06 pmAs for standing, right, the only way I can see how California law would give proponents Article III standing would maybe be if there were a specific law granting them agency to represent the electorate, which is a separate issue from standing in California courts.
Guy says:
Why? Because you want it that way?
They have standing to defend enactments to Constitutional challenge, but not to sue for enforcement? Or do they have standing to sue for enforcement as well, in your view?
August 19, 2010, 4:10 pmGuy says:
But it does grant the Attorney General the power to speak for the state in federal litigation.
First of all, the question isn’t what I “see a problem with”, the question is what the law is. Secondly, that law is plainly unconstitutional, so you’re going to have to give me a better example before I start worrying.
August 19, 2010, 4:21 pmGuy says:
Also, I already explained on the other thread why this is inconsistent with Raines v. Byrd, which you have still failed to distinguish.
August 19, 2010, 4:25 pmGuy says:
Nevermind, I misread your example, I thought the law referred to them by name. There are enforcement mechanisms for such things, including political pressures, recalls, and impeachment. Also an office of independent counsel or ombudsman could be in charge of enforcing the provision. Plus, nothing prevents the proponents from intervening if there is a lawsuit, just as they did here.
August 19, 2010, 4:30 pmA.W. says:
Guy
> So how do you reconcile this?
Yes, it was dicta that the courts have followed regularly in granting standing on appeal. Eg: Citizens for Planning Responsibly v. San Luis Obispo, 176 Cal. App. 4th 357
> if there were a specific law granting them agency
Ah, notice you move the bar to a statute, rather than a decision.
> Because you want it that way?
Because any other result nullifies the entire initiative process, which the federal government should not do.
> They have standing to defend enactments to Constitutional challenge, but not to sue for enforcement?
How are they harmed any less than Ahnold?
> Or do they have standing to sue for enforcement as well, in your view?
I think it depends on what their constitution says, as expounded by their courts.
> But it does grant the Attorney General the power to speak for the state in federal litigation.
The exclusive power? I am sure you have a citation, right?
> First of all, the question isn’t what I “see a problem with”
Actually it is. The constitution is not a math problem, it’s a logic problem. it’s a matter of having faith with what the law actually says. You are all tied up in form and utterly ignoring substance. What is the point of granting the people of California the right to amend their own constitution without the consent of their state officials, if their state officials can nullify those amendments the first time anyone comes up with a colorable claim that it violates the federal constitution?
I mean let’s follow this out. What if this ruling, this complete POS, stands? I mean seriously, even if you support gay marriage, this ruling is on a basic level is a complete POS. what if three years down the road, Arizona has an identical constitutional amendment or something even more discriminatory toward gays, and the supreme court upholds it? then all that time the federal government would have been trampling on the people of California’s constitutional right to ban gay marriage, but because Anhold and Eugene chose not to challenge it, they were able to accomplish what the law forbade. How does that even make sense?
> Secondly, that law is plainly unconstitutional
Lol a constitutional right to nepotism. Well, that is a new one.
August 19, 2010, 4:40 pmJoe says:
L:
You are correct that the standing issue in Grutter and Gratz were not identical. My point which wasnt very clear, was that Stevens took a somewhat inconsistent position on standing to essentially as a rationale not to deny the claim, because he was not in the majority.
August 19, 2010, 4:56 pmyankee says:
What was the state of standing doctrine under the Articles and/or prior to the Revolution? That would provide some insight into the original public meaning.
August 19, 2010, 4:59 pmGuy says:
San Luis Obispo is still a named party, I don’t see how that shows anything about standing.
I’m not moving the bar, a decision to the same effect is equally valid. But standing under California law is not proof of agency (though I doubt even standing exists). Furthermore, even the conferral of agency is not proof of Article III standing, though it may be sufficient.
That’s a policy argument, not a legal argument.
He’s bound by the injunction and has an obligation to execute the law.
Agreed, at least insofar as state court lawsuits go, but you still haven’t pointed out such a case, anyway.
Sorry, I explained above that I misread your example.
What’s the point of having a legislature if the executive can do the same thing there? You still haven’t distinguished Raines v. Byrd. The fact is that there are plenty of available checks on abuses.
August 19, 2010, 5:00 pmGuy says:
Ok, my response got marked for moderation again, but the short version: San Luis Obispo was still a named party, so I don’t see what that shows even under California’s standing law.
And you still haven’t distinguished Raines v. Byrd, if legislators don’t have standing under this set of circumstances, then it follows a fortiori that neither do proponents.
August 19, 2010, 5:05 pmGuy says:
Also, like I said above, I misread your nepotism example. Sorry about that.
August 19, 2010, 5:08 pmA.W. says:
Guy
I didn’t see you walk back on that until after i posted.
Also i noticed for the first time this passage in the arizona case:
> In addition, the District Court was satisfied that AOE and Park could not tenably assert practical impairment of their interests stemming from the precedential force of the decision. As nonparticipants in the federal litigation, they would face no issue preclusion.
Which seems to be an easy distinction to make.
August 19, 2010, 5:19 pmA.W. says:
btw, folks why is “guy” getting his comments caught in the traps? we are having a lively, and dare i say, fun discussion. by definition, i don’t know what is being held back, but i would be surprised if it was particularly nasty.
August 19, 2010, 5:21 pmrichard says:
Under Professor Somin’s proposed standing definition – “the harm that all citizens suffer when public resources are expended for unconstitutional purposes should be sufficient” – anybody could bring suit anytime new legislation was passed. And therefore, the “case or controversy” requirement of article III is meaningless -every single legislative enactment would constitute a “case or controversy”. Interesting that a self-professed conservative would propose a Constitutional interpretation which would make a Constitutional provision superfluous.
August 19, 2010, 5:22 pmGuy says:
The AOE dicta is only dicta, we already know that it’s not directly binding.
My questions are: Are there any cases in state court indicating that proponents have been granted agency to represent the voters, or even that they have standing under California law?
And, why, since legislators don’t have standing to defend legislation they passed, should proponents be treated any differently? The executive can choose not to appeal a challenge to legislation from a legislative body just as easily as they can with an initiative.
August 19, 2010, 5:27 pmA.W. says:
Btw, i think patterico, a california resident gets at the issue pretty nicely.
> There is more at stake here than gay marriage. If that argument prevails, it eviscerates California’s initiative process, as to any law that the Attorney General and Governor don’t like.
Mind you, Patterico voted against Prop 8.
You can read more on his perspective, here:
http://patterico.com/2010/08/13/the-negation-of-your-vote-by-your-betters/
http://patterico.com/2010/08/12/judge-lifts-stay-gay-marriages-start-next-week/
i like this passage, too:
> His reasoning is not just specious — it’s infuriating. Specifically, he says that if Schwarzenegger and Jerry Brown don’t want to appeal, then the proponents of the initiative have no standing to appeal. In other words, their standing was good enough for the trial, allowing the judge to load up the record with sweeping statements about the significance of marriage, couched as “factual findings.” But the second that those same parties want to question the factual findings in an appeal, all of a sudden they lack standing.
> It would be laughable if it weren’t so cynical.
California has a method by which its constitution can be changed. the federal courts have no business trampling on it based on at best made up rules. Standing rules are designed to get litigants on both sides who give a crap about what this is about. But according to this judge the only people who have standing are the ones who not only don’t give a crap, but actively tried to subvert the law that supposedly only they have the power to defend.
August 19, 2010, 5:28 pmA.W. says:
And, btw, here is the truly appalling element of this decision. The judge shouldn’t have sat in on the decision in the first place.
http://patterico.com/2010/08/05/should-the-prop-8-decision-have-been-made-by-a-gay-judge/
August 19, 2010, 5:29 pmGuy says:
I don’t find that inappropriate, that’s like saying a black judge would have to recuse himself from a civil rights case, or a woman from a case on gender discrimination.
August 19, 2010, 5:33 pmGuy says:
They had no “standing” at trial, either. They were only intervenors, from a Constitutional perspective, they were basically a glorified amicus.
August 19, 2010, 5:35 pmGuy says:
You don’t need rules to make sure people who care are parties, no one would sue if they didn’t care. Standing rules are specifically and intentionally designed to prevent litigation by people who do care, but have no legally cognizable interest in the outcome.
August 19, 2010, 5:39 pmJohn David Galt says:
I can’t accept any need for such a thing as “standing” beyond a narrow scope of cases where the potential plaintiff isn’t really affected but is malicious (for instance, someone who sues to prevent the issuance of a liquor license to a nightclub because he is a zealot who believes all drinking is wrong).
Anyone who is genuinely harmed should have the right to bring any case — including criminal prosecution when the state prosecutor doesn’t want to bother. The right way to keep the frivolous cases out is an absolute loser-pays rule.
August 19, 2010, 5:47 pmCMH says:
Therein lies the problem. Since when does a state constitutional process trump the ability of federal courts to regulate the cases before them?
August 19, 2010, 5:56 pmDe Minimis Matt says:
Ilya’s concern takes an accurate statement of the “real application” of the standing doctrine and mislabels it as the “real puprose;” One need look only at the seminal cases – Warth v. Seldin, Lujan v. DOW, Allen v. Wright, and City of Los Angeles v. Lyons, to see high-quality cases and litigants, rejected on questionable application of standing, in order to achieve a politically-desirable result. The doctrine of Art. III standing however, does have a real purpose; it is evident from its history, namely that famous anecdote of the Jefferson Memorandum (which for some reason, we are not discussing?) and Hayburn’s Case. There is a real, coherent, separation of powers purpose. That purpose is almost always misapplied in practice.
August 19, 2010, 10:19 pmORID says:
Poppycock! Of course Article I addresses Congress. But Article I (and its grant of exclusive legislative power) is a constitutional limitation on the Executive Branch. As I stated above, Article I and Article II also protect my voting rights. Once the Executive infringes on the Legislative power, it infringes on my voting rights because I’m no longer voting for and represented by a Congress that has the exclusive Legislative Power, rather I vote for a body that shares legislative power with the Executive; and I have an Executive who is a tyrant.
August 19, 2010, 10:54 pmMJW says:
Guy says: I already explained on the other thread why this is inconsistent with Raines v. Byrd, which you have still failed to distinguish.
(My comment from another thread, copied with minor modifications.)
I don’t think Raine has much to say either way about the sponsors’ standing in the Prop 8 case. Some of the main points of the Raine opinion are: 1) The issue is essentially political — a squabble between (or perhaps I should say “within”) the legislative and executive branches, which in respect for separation of powers, the courts should avoid; 2) The plaintiffs purport to protect the interests of the legislature, yet the will of the legislature, as expressed by majority votes, is just the opposite; 3) If the act in question deprives congress of its proper power, congress can remedy the problem by repealing the act or exempting legislation from coverage.
In the prop 8 case, there is no federal separation of power issue; the interest of the people of California, as expressed by a majority vote, is the interest represented by the sponsors; short of a decision in their favor, the voters have no remedy.
The court rejects the Raine plaintiffs’ reliance on Coleman v. Miller because in that case the legislators’ votes were completely nullified, whereas in Raine they were at most slightly diluted. I hardly need to point out that the California people’s votes were nullified by Walker’s decision.
August 20, 2010, 4:58 amL says:
Seems pretty clear.
Westlaw is odd:
Giving us the rare 10-2 decision.
This may seem like a fine legal point, but the votes were not nullified by Walker’s decision. Prop 8 is in the California Constitution. The votes counted, the proposition passed, the constitution was amended. The next question is whether enforcing that provision of the constitution conflicts with the US Constitution. That’s a question in which the proponents of Prop 8 have no legally cognizable interest.
Compare this with Coleman – 20 votes against the thing would ordinarily mean it wouldn’t pass. But it did pass. Their votes were nullified. (Rightly, as it turned out, but that’s a question of merits, not standing.)
Let’s change the facts of Coleman a little. Let’s look at the 20 senators who voted for the amendment. They ended up in the majority (thanks to the lieutenant governor), but the amendment still isn’t in the US Constitution. Surely these 20 senators’ votes have been “nullified” in the same way (though by a different process) than the Prop 8 proponents’ votes have. That is, they voted for one thing, and were in the majority, but they got something else. Would the senators have standing to challenge the failure of the amendment? Forget about the merits – would they have standing?
August 20, 2010, 10:16 amUrso says:
This can’t be right. The point of passing a proposition is not to get some meaningless words scribbled on a piece of paper, it’s to have those words create legally binding, real world effect. This argument is just too clever by half.
August 20, 2010, 10:37 amyankee says:
I think this takes the prize for VC understatement of the year.
August 20, 2010, 11:19 amBleh says:
See the Oath of Office, as laid out in art. 20, §3 of California Constitution.
The AG and Governor swear an oath to uphold both the US and California Constitution. The Constitution of the United States explicitly preempts the California Constitution. If the AG (and Governor) felt that Prop 8 was a clear violation of the Constitution of the US then I see no reason why he should fight to validate it.
Of course you, and others, may feel that this decision was wrong. Luckily, art. 2, §§ 13-19 provide the procedure for recall elections (a process that most of us Californians are fairly familiar with).
August 20, 2010, 12:05 pmL says:
But if standing means anything, it means that just because you are unhappy about something doesn’t mean you’re a proper plaintiff to sue to get it changed. It seems to me that the Proponents would be proper plaintiffs to sue to make sure Prop 8 got put on the ballot, to make sure the election was conducted fairly, and to make sure the proposal, once passed, got put into the constitution, however that process happens. It doesn’t make them gay-marriage-plaintiffs-for-life. If it did – why stop at the proponents? 7 million votes “nullified” – 7 million potential plaintiffs?
Hypothetical: Somehow, Perry gets reversed. Prop 8 is the law of California once more. Shortly thereafter, a pro-gay marriage amendment is added to the US Constitution. It succeeds (bear with me; it’s just a hypothetical) with the bare minimum of states ratifying (38). There are legitimate questions about whether ratification was proper in Illinois. After trial in US District Court in Illinois, the ratification is held to be valid, and (for whatever reasons) the losing party chooses not to appeal. Given that the passage of this amendment would reduce Prop 8 to “meaningless words scribbled on a piece of paper,” and taking your implication that this gives Proponents standing, would you argue that the Proponents would have standing to appeal the ruling from a US District Court in Illinois to the Seventh Circuit?
Now the argument I suppose is, well, that’s totally different from what CJ Walker did. And it is different, but the point is – there are a lot of things that can happen that will make gay marriage legal in California, but just being proponents of a ballot measure that made it illegal does not give you standing to challenge everything that would make it legal. And then the argument I guess is, no one’s claiming they’d have standing to challenge everything, only that they have standing to challenge this. But I say if they have standing to challenge this because it renders Prop 8 “meaningless words scribbled on a piece of paper,” then they do have standing to challenge everything. So if they don’t have standing to challenge everything, then there needs to be a better reason why they would have standing to challenge this. And I don’t see one that consists with Article III, Lujan, and most particularly Raines v Byrd.
August 20, 2010, 12:27 pmJohn D says:
Can the voters truly expect to create a “legally binding, real world effect” if that LBRWE conflicts with the Constitution? If a plurality of California voters put a gun ban into their constitution, does that override the 2nd Amendment? Of course not.
Certainly their intent for their will to be legally binding. They still don’t get to override the US Constitution.
(And as I was typing, so was L, except L was far more eloquent than I.)
August 20, 2010, 12:27 pmUrso says:
I think you read a lot into my post that simply wasn’t there. I don’t believe individual Prop 8 voters have legal standing. I do believe, on behalf of those voters, the governor and AG have a duty to defend the proposition against constitutional challenge.
Obviously if Prop 8 is unconstitutional (and I believe it is) it should not, and will not be, enforced. But that’s for the Supreme Court to decide – and I think we can all agree this is an important enough question that it should be taken up by the SC – it is emphatically not the duty of the governor and the once-and-future-governor to unilaterally decide that a lawfully enacted statute is unconstitutional.
August 20, 2010, 1:12 pmMJW says:
L says: This may seem like a fine legal point, but the votes were not nullified by Walker’s decision. Prop 8 is in the California Constitution.
Vanishingly fine, I’d say. I noticed you didn’t address my primary point that facts cited by the court for denying standing to the Raine plaintiffs do not apply to the prop 8 sponsors.
August 20, 2010, 1:29 pmL says:
I didn’t mean to. The point of my argument was that the proponents don’t have standing, so when you said the argument couldn’t be right, I took it to mean that you thought the proponents do have standing. A mistake, but understandable, I think!
A separate question, of course. And of course, the governor and AG did defend the proposition. And the court quite appropriately allowed those who had the motivation to argue it as well as possible to do so. But where does the duty to appeal come from? Appeals are discretionary – they have to be.
Another (longwinded) hypothetical: Jerry Brown wakes up tomorrow and has an epiphany: Prop 8 is good policy, just and right, will benefit California, and most importantly is consistent with the US Constitution. And he’s still within the time limit for an appeal. But he has a second epiphany: he’s 99% certain that the Supreme Court will strike down Prop 8 if it gets there. So rather than inflict upon the entire nation what he now believes to be the harm that accompanies gay marriage, he would rather allow the decision to stand in California only so that other states can preserve their restrictions. Can anyone argue that Brown would be required to appeal in this circumstance? Because that’s the kind of thing attorneys general do on the regular.
I agree that I would like it to go to the Supreme Court (even though my hunch is they would uphold Prop 8, which I don’t want), but I don’t see how I can get what I like consistent with the law. A federal appellant needs appellate standing. And no matter how much you and I and everybody else (except apparently Schwarzenegger and Brown) might want this to go up, I don’t think anything in the law gives them standing.
And of course that’s not what they did. A federal judge decided it was unconstitutional, which was as I think you’ll agree his job to do. I’d be a lot more disturbed if this case had been decided without the intervenors, and I’d be extremely disturbed (and surprised) if it had been decided as a default judgment. But it wasn’t.
August 20, 2010, 1:38 pmGuy says:
But other than the separation of powers point (which is replaced by a respect for the state’s ability to choose its represenatives point), those are all equally applicable here. If the electorate is the legislature, then the legislature as a whole, and not individual members, are the proper party.
Also, I don’t perceive much reliance on the nullification versus dilution point. The Court emphasized whether the harm was generalized to the body or particularized to the legislators as the important point. If this were a vote-counting issue, individual voters (but probably still not proponents – a corporation which has no right to vote under California law, but maybe it can represent its members) would have standing, but it’s not, it’s an issue of the validity of the law itself.
August 20, 2010, 1:44 pmGuy says:
Well, not equally applicable, but it seems hard to fathom that legislator standing suddenly becomes valid just because they were in the majority on a particular vote.
August 20, 2010, 1:51 pmL says:
My point was that the Proponents are more similar to the Raine plaintiffs than to the Coleman plaintiffs. The Coleman plaintiffs were complaining about what actually happened to their votes – the process was allegedly bad. The Raine plaintiffs acknowledged that the process was fine, but argued that the fact of how they voted gave them standing to litigate the constitutional issue. The Prop 8 proponents also recognize that the process was fine, but are arguing that the fact of how they voted gives them standing to litigate the constitutional issue. In this sense, they’re comparable, which is what I was saying, which did address your point. I’m sorry if it wasn’t clear.
The facts aren’t identical, of course. In one case, those who voted for something want to go to court to argue it’s constitutional, and in the other case, those who voted against something want to go to court to argue it’s unconstitutional. And that difference can be more or less significant depending on what we’re talking about. But we’re talking about standing, and for standing you need an injury. And it seems to me that the “injury” to the proponents in this case is the same as the “injury” to the plaintiffs in Raines. That is, not a legally cognizable one.
I’ll ask you what I asked Urso. Why just the proponents? 7 million voters had their votes “nullified” – why not 7 million potential appellants?
August 20, 2010, 1:52 pmGuy says:
This is my reading of the case, thanks for putting it better than I did.
August 20, 2010, 1:54 pmGuy says:
Exactly, like I said above, prop 8 was a referendum on SSM. I don’t think the voters understood their vote to be conferring any sort of special, privileged status on the proponents to have the right to represent their interests. Also, proponents are suing in their own name, not in some special “representative of the people” capacity.
August 20, 2010, 1:58 pmMJW says:
But other than the separation of powers point (which is replaced by a respect for the state’s ability to choose its represenatives point), those are all equally applicable here.
In regard to the the other issues besides separation of powers, that’s simply not true. As I said in my initial comment:
In regard to separation of powers versus the state’s ability to choose its representatives, as far as I’m aware, there’s no “six of one, half a dozen of the other” legal principle that would allow the entirely separate issue of the state’s ability to choose its representatives to replace separation of powers for the purposes of establishing a precedent.
If the electorate is the legislature, then the legislature as a whole, and not individual members, are the proper party.
So if the electorate are the people of California, who is the proper party to represent their interests? As seen in INS v. Chadha, when the electorate is the legislature, it is not dependent on the sometimes contrary interests of the executive to defend the constitutionality of its enactments. Yet even though a voter referendum is even more likely to place the electorate and the executive on opposite sides, your “state’s ability to choose its representatives” position supposes that the people should be entirely subservient to the executive. That is, I believe, contrary to the California constitution, which declares that “[a]ll political power is inherent in the people,” and backs that up by providing a mechanism for the state’s people to override the wishes of the executive and legislature.
Also, I don’t perceive much reliance on the nullification versus dilution point. The Court emphasized whether the harm was generalized to the body or particularized to the legislators as the important point. If this were a vote-counting issue, individual voters (but probably still not proponents — a corporation which has no right to vote under California law, but maybe it can represent its members) would have standing, but it’s not, it’s an issue of the validity of the law itself.
Here’s what the court said about nullification versus dilution:
Whether that should lead to a perception that the court relied on the distinction between nullification and dilution, you can decide for yourself.
August 20, 2010, 4:11 pmA.W. says:
Guy
> The AOE dicta is only dicta, we already know that it’s not directly binding.
Absolutely true, but then the argument against the precedent set by the lower court (the 9th circuit) applying here is also that same dicta.
> Are there any cases in state court indicating that proponents have been granted agency to represent the voters, or even that they have standing under California law?
Its been done routinely, which is my point.
> And, why, since legislators don’t have standing to defend legislation they passed,
Except they do.
> I don’t find that inappropriate, that’s like saying a black judge would have to recuse himself from a civil rights case, or a woman from a case on gender discrimination.
No, it is ruling on his own ability to get married. And its wildly inappropriate.
> You don’t need rules to make sure people who care are parties, no one would sue if they didn’t care.
But we are not talking about the decision to sue, but the decision to defend.
CMH
> Since when does a state constitutional process trump the ability of federal courts to regulate the cases before them?
Well, if Judge Walker wanted to dismiss the case for lack of adverseness, I would have agreed.
August 20, 2010, 4:24 pmA.W. says:
L
> This may seem like a fine legal point, but the votes were not nullified by Walker’s decision. Prop 8 is in the California Constitution. The votes counted, the proposition passed, the constitution was amended. The next question is whether enforcing that provision of the constitution conflicts with the US Constitution. That’s a question in which the proponents of Prop 8 have no legally cognizable interest.
Lol, they have a right to amend the constitution, but not the right for it to mean a damn. Lol
Of course if proposition 8 is violative of the 14th Amendment you are right. Sorry its hard to write that without laughing, because it really is ludicrous to say that those founders believed this was even a remote possibility under it.
But you would have us say that even if Prop 8 is not in violation of the 14th amendment. So the people of california have no right to amend their constitution, in a manner consistent with the federal constitution and for it to mean a damn. okay.
August 20, 2010, 4:28 pmL says:
Wait. I have heard over and over that a gay person in California has the exact same ability to marry someone of the opposite sex as a straight person. Is that no longer operative? If Prop 8 is struck down, it will expand every judge’s ability to marry someone of the same sex.
Maybe you are too busy laughing out loud to understand what’s being said. There was a trial. The law was defended. The governor and the attorney general did not default. Because they weren’t motivated to argue the point, people who were motivated were allowed to present their very best arguments. The trial concluded. The plaintiffs prevailed.
I understand that you would like to have two more courts reexamine the issue. I would too. Now maybe you’re right and I’m wrong and there’s some way the proponents can appeal this that is consistent with the Constitution and the laws interpreting it. But I don’t see it. And you haven’t shown it to me, because you haven’t meaningfully distinguished Raine, and your argument is basically that it isn’t fair.
So where we’re at is, you condemn CJ Walker for what you see as twisting the Constitution to enact his perception of fairness for gay Californians, and at the same time you call for the twisting of the Constitution to enact your perception of fairness for anti-gay Californians. Okay.
August 20, 2010, 4:54 pmA.W. says:
L
> Is that no longer operative?
If you are asking if I personally engage in that kind of “cute” logic, the answer is no. Saying gay people can marry, but not members of the same sex is too cute by half imho.
> There was a trial. The law was defended.
Before a judge who had no business sitting in the case, who was twice overturned in the case before it even began. Who made findings of fact that were facially ridiculous.
And defense includes appeals where appropriate. And this one is screaming for one.
> But I don’t see it.
Of course you don’t, because in truth you want them to lose on a stupid technicality.
> And you haven’t shown it to me, because you haven’t meaningfully distinguished Raine, and your argument is basically that it isn’t fair.
No, it is about substance. This is a constitution we are expounding, you know.
> at the same time you call for the twisting of the Constitution to enact your perception of fairness for anti-gay Californians.
No, I dispute your reading of the constitution. There is a difference. Now I do think some things are reasonably disputed and some are not. It is not even reasonably to believe that in 1868 any gave a flying f—k about gay people, even to p—s on them if they were on fire. Call them bigots if you are inclined, but that is how they were. And the notion that the constitutional amendment they wrote would be interpreted to REQUIRE gay marriage is laughable on its face.
Indeed, the most ludicrous point in the opinion was where the judge said the right to marry is fundamental. That means a state cannot get out of the marriage business if it chooses. I am not a fan of the libertarian proposals to do that, but its silly to say it against the federal constitution to do so.
August 20, 2010, 5:13 pmGuy says:
But you haven’t shown me any, only cases in which proponents were allowed to intervene into a preexisting case or controversy.
Doubt that, as does at least Justice Scalia, listen to the oral argument in the AOE case to get a better idea of what an uphill battle you’re facing.
How would you distinguish that from a black judge ruling on whether it’s unconstitutional to deny black people the right to vote?
The ability to seek an appeal is more akin to suit than defense, in fact, many methods of seeking appeal (such as mandamus) technically are suits.
August 20, 2010, 5:29 pmGuy says:
Ask yourself this: could Perry have sued Protect Marriage to prevent prop 8 from being enforced? Of course not, protect Marriage has nothing to do with the execution of the laws. Protect Marriage is using the appeal as a sword, not as a shield.
August 20, 2010, 5:33 pmGuy says:
The Attorney General, or any other individual who has that role conferred on them by state law.
August 20, 2010, 9:53 pmORID says:
By my reading of the Raines v. Byrd opinion, I think it might be possible they could get a different outcome if they have a plaintiff voter. The way the complaint was pleaded (or at least by the Supreme Court’s measure) it looks like they plead some type of institutional injury, or even some injury based on the fact that they are Congressmen. One could argue that legislative acts should not be nullified by the Executive (quite different than forcing the Executive to “follow the law”). I think this is why there will never be a constitutional line-item veto.
The Supreme Court opinion even pointed out that the legislators would lose standing if they were voted out.
This is just my theory based on what I’d call “voter standing”.
However, I don’t think voters would have standing in the Prop 8 case. I think voters would have action to challenge, in state court whether Schwarzenaeger/Brown failed to uphold the California constitution. Does a Governor have the duty to uphold the state Constitution or the US Constitution? I think he has the duty to uphold the state Constitution. Would it be possible for the Governor to have the case removed to federal court?
As I stated above, I think voters have way more power than people think we have as far as the courts go. If one doesn’t think voters would have standing, than how come the courts entertained challenges by DC and Puerto Rico residents complaining that they didn’t have Congressional representation. I don’t believe those cases were dismissed based on standing.
One more point on Raines v. Byrd… the cases wouldn’t make it even if they did have standing. There was a curious case brought by amongst other people, Congressman Judd Gregg trying to get Congress to release a full transcript of Congressional proceedings (rather than allowing Congressmen to reserve time and insert comments later). The case was dismissed due to something like “discretionary relief”. Gregg could get the Congressional rules changed.
August 20, 2010, 9:55 pmGuy says:
I think that paragraph is best understood to represent a difference in kind, not of degree. If the problem relates to the internal processes of the legislature, legislators can sue, with respect to the external attacks on the law, the body must sue. I think your reading is the more strained one.
August 20, 2010, 9:57 pmGuy says:
This is exactly the equivocation I was arguing about above. The right to vote is not the same as the right to have a law enforced.
August 20, 2010, 10:05 pmORID says:
However, I’m not quite sure they would have standing to sue based on the Governor and AG not appealing themselves. Based on the fact that the California Constitution also states the US Constitution is the Supreme law. Is it a ministerial task to appeal or discretionary task?
I’m guessing if it explicitly states in the California Constitution that the US Constitution is the supreme law (a really dumb clause to put in a state constitution IMHO), which it does… there would be no case because at this point the District Court is “settled law”… however it might be an interesting case/controversy.
Here we go.
Article 2, Section 10(c):
he Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
This doesn’t create a duty for the executive per se, but it does seem to imply no state actor can repeal an initiative statute with their discretion. Can one argue that the Governor is essentially repealing the statute by allowing it to get overturned?
August 20, 2010, 11:15 pmGuy says:
The Attorney General has an obligation to the Constitution of the United States which overrides any state law obligation he has. For example, if a statute commands him to print tender that is not gold or silver coin, he has a Constitutional obligation not to obey it. A general “take care” obligation to enforce the law would therefore presumably not require him to appeal. I don’t see how the obligation can be ministerial unless a statute or other law explicitly commands him to appeal any adverse judgment without exception, that’s okay, of course, because the litigation itself is not unconstitutional.
August 20, 2010, 11:42 pmORID says:
I agree with that only because it states the US Constitution is the supreme law of the land. What if it stated the California constitution is the supreme law of California and if there is any conflict between state law and United States Constitution all California officials have a duty to take the case/controversy to the Supreme Court/appeals courts of the United States to the fullest extent possible under United States law?
Would that even get pre-empted?
August 20, 2010, 11:53 pmGuy says:
If the California Constitution said that? Doesn’t matter, the United States Constitution is the supreme law of the land, and it requires the Attorney General of California to be bound by oath or affirmation to that effect. The Constitution doesn’t forbid the litigation, though, so there’s nothing wrong with requiring it, I just don’t know what provision in it can be construed that way.
August 21, 2010, 12:07 amBruinrefugee says:
Two quick thoughts:
(1) Have to agree that the comment about 12(b)(6)’s efficiency suggests a lack of litigation experience. It’s about as much a screen as a negligee for plaintiffs with decent representation.
(2) Part of the issue with the Prop. 8 trial is Brown’s abdication of his duties. It’ll probably cost him the governor spot even in a state like ours. Putting aside what anyone wants the Constitution to mean, as AG he’s armed with many arguments to defend the constitutionality of the law — and he chose not to use them. There’s a collusive aspect here that brings real damage to government institutions.
August 21, 2010, 10:33 amGuy says:
I have a silly question, why is it okay for the government to settle suits with respect the “ordinary” application of laws, but not with the Contitutionality of laws? If California doesn’t want this issue in the Supreme Court, don’t they have a right to keep it out?
August 21, 2010, 1:11 pmMJW says:
Guy says:
But that isn’t parallel to the case where the legislature is the electorate, since if the AG refuses to defend a legislative enactment, the legislature can defend it themselves. How can the voters defend their enactments in that case? The California supreme court has decided that because the California constitution grants ultimate authority to the people through the initiative process, the people deserve to be represented even when elected officials refuse, and that the initiative sponsors are normally allowed to do so. That makes for a strong argument that, following Karcher v. May, the sponsors can represent the interests of the California voters in federal court.
The Karcher v. May court says:
Thus they establish the principle that those allowed by the state supreme court to represent the interests of the larger group in state court are also allowed to represent their interests in federal court.
This distinguishes the case from Arizonans for Official English, where the court noted in its dicta that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials.”
August 22, 2010, 2:10 amMJW says:
Guy says: I have a silly question, why is it okay for the government to settle suits with respect the “ordinary” application of laws, but not with the Contitutionality of laws? If California doesn’t want this issue in the Supreme Court, don’t they have a right to keep it out?
I have a silly question: If the U.S. Government in INS v. Chadha was willing to settle with Chadha, why didn’t those mean old members of Congress just let it, instead of intervening and making a federal case out of it?
August 22, 2010, 2:19 amGuy says:
Was jurisdiction predicated on Congress’ decision to appeal? I thought it was the INS who appealed the decision to the Supreme Court. I think it is important to keep in mind that the ability to intervene in a lawsuit does not necessarily equate to Article III standing.
August 22, 2010, 3:24 pmGuy says:
So which is the California case in which the standing of proponents was established?
August 22, 2010, 3:26 pmMJW says:
Guy says: Was jurisdiction predicated on Congress’ decision to appeal? I thought it was the INS who appealed the decision to the Supreme Court. I think it is important to keep in mind that the ability to intervene in a lawsuit does not necessarily equate to Article III standing.
No, the INS appealed (in fact, congress argued the SCOTUS lacked jurisdiction to hear the appeal). However, congress clearly could have appealed. In footnote 5, the court said: “Both Houses are therefore proper ‘parties’ within the meaning of that term in 28 U.S.C. 1254(1).” 28 U.S.C. 1254 says: “Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;” So it doesn’t matter whether or not “mere” interveners have a right to appeal (that is, whether someone can properly intervene who cannot also appeal), since the court declared that both Houses were “parties” within the meaning of a statute that grants such parties the right to petition for certiorari.
This is confirmed — and more on point to the Prop 8 case — by White’s concurrence in Karcher v. May:
White points out that the appeal to the Court of Appeals in Karcher was from the New Jersey Legislature, as represented by its presiding officers.
(Just a side note: In INS v. Chadha, the House and Senate originally did file briefs as amici curiae, but later intervened.)
August 23, 2010, 3:22 amMJW says:
Gut says: So which is the California case in which the standing of proponents was established?
For example, Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986):
Also the fact that the Prop. 8 sponsors were allowed to intervene “to guard the people’s right to exercise initiative power” in the state case, Strauss v. Horton.
August 23, 2010, 3:47 amL says:
We’re going around in circles. That case (a) wasn’t about standing, it was about allowing a proponent to intervene in order to give an ordinance a vigorous defense (in other words, exactly what happened in the Prop 8 trial) and (b) if it had related to standing, it would have related to standing in California courts, not federal courts. The requirements might well be different.
Again, intervention not standing. Again, state court not federal court.
August 23, 2010, 10:33 amMJW says:
L says: That case (a) wasn’t about standing, it was about allowing a proponent to intervene in order to give an ordinance a vigorous defense (in other words, exactly what happened in the Prop 8 trial) and (b) if it had related to standing, it would have related to standing in California courts, not federal courts. The requirements might well be different.
But in Karcher v. May, the fact that the New Jersey supreme court allowed the presiding officers to defend the interests of the legislature in the state court is exactly the reason the SCOTUS said they had Article III standing in federal court.
As I mentioned previously, not only were the presiding officers allowed to intervene in the federal court, they were allowed to appeal the district court decision.
Also, in Arizonans for Official English, the court noted in its dicta that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials.” California law, on the other hand, does appoint initiative sponsors as agents of the people of California to defend, in lieu of public officials
August 23, 2010, 3:40 pmbruinrefugee says:
It generally isn’t okay to stipulate to invalidity, especially where the law is not established. If things are faring badly a settlement unique to the person or proposing an administrative solution is often the way they get resolved. Sometimes the defense itself will be half-hearted with no real effort to appeal. But I think it’s fair to say that’s highly unlikely: (a) where it’s a hot button issue and/or (b) the existing law is in the state’s favor.
As for standing, the federal issue turns on the vision of who or what confers standing. Scalia (alone as far as I know) seems to lean towards a common law model of standing, while others IIRC see it as a creature of legislative grant (or not a problem at all so long as there’s some theoretical harm). Applying the latter view, the grant of standing under California law (i.e. a protectable interest) would probably be enough to create federal standing as well.
August 24, 2010, 5:51 pmMJW says:
Guy: I have a silly question, why is it okay for the government to settle suits with respect the “ordinary” application of laws, but not with the Constitutionality of laws? If California doesn’t want this issue in the Supreme Court, don’t they have a right to keep it out?
I believe the answer is No.
The California constitution says:
(I note that Prop. 8 is implemented as section 308.5 of the California code.)
Two question arise: Does “unconstitutional” mean in reference to both the federal and state constitution, or just the state constitution; and, what is considered an “administrative agency”?
I would suppose that because the term unconstitutional isn’t qualified, and because the purpose of the provision is clearly to prevent state agencies from deciding for themselves which statues to enforce, that both the federal and state constitutions are included.
Though the term administrative agency isn’t defined in the state constitution, it is defined in California statute 87400 as “every state office, department, division, bureau, board and commission, but does not include the Legislature, the courts or any agency in the judicial branch of government.”
There are couple of interesting things to consider:
First, can the governor and AG refuse to defend a statute if they decide it’s unconstitutional? Surely that qualifies as declaring it unconstitutional. For those who say they must put the federal constitution ahead of the state constitution, I reply that it isn’t against the federal constitution to vigorously defend a law that you personally believe is unconstitutional, or to appoint someone to defend it who believes it is constitutional.
Second, the provision requires that agencies enforce a statute until an appellate court has declared the statute unconstitutional. So far, that hasn’t happened in the Prop. 8 case. I assume the district court ruling trumps the California constitution, so the judge can order the governor to direct county officials to abide by its ruling. But since Imperial County offices were not a party to the suit, I assume they aren’t bound by the decision, and since the state constitution trumps the governor, I would think he cannot order the county to disregard the marriage statute, when doing so would violate the state constitution.
August 25, 2010, 3:13 amMJW says:
…I would think he cannot order the county to disregard the marriage statute, when doing so would violate the state constitution.
What I meant was, I would think the county officials would have to disregard the governor’s order, since it would be contrary to the state constitution.
August 25, 2010, 3:27 amMJW says:
Though I think I may be the only one still reading this thread, I thought I ought add to bit more to my previous comment. I had a little time to look into the California case law and discovered a few interesting facts.
There are several cases that consider section 3.5 of the California constitution. One of them, Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055, directly concerns same-sex marriage, which makes it surprising to me that little mention has been made of section 3.5 in the Prop. 8 case.
I asked two initial questions: Does “unconstitutional” mean in reference to both the federal and state constitution, or just the state constitution; and, what is considered an “administrative agency”?
The answer to the first question seems to be clearly indicated in several California supreme court cases. “Unconstitutional” refers to both the federal and state constitutions.
The second question is asked but not answered in Lockyer. The specific question is whether section 3.5 applies to local (county or city) officials. The court decided it didn’t need to resolve the issue, since even without section 3.5, the county clerk and county recorder lacked the discretionary authority to refuse to abide by a statute they believed to be unconstitutional.
I then asked: Can the governor and AG refuse to defend a statute if they decide it’s unconstitutional?
This question is raised but not answered in another case, Connerly v. State Personnel Bd., 37 Cal. 4th 1169
(The court opinions I mentioned are avaiable on California’s court opinion website, but because of the way it’s set up, I don’t think I can provide direct links.)
August 27, 2010, 4:19 am