I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, […]
Archive | Standing
The Jerusalem Passport Case – Separation of Powers and Standing
By Eugene Kontorovich on July 23, 2013 12:31 pm in Constitutional Law, Israel, Separation of Powers, Standing
The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on […]
Amicus Brief on Standing in ProgressOhio.Org v. JobsOhio
One of Ohio Governor John Kasich’s more controversial initiatives has been the creation of JobsOhio, a private, nonprofit corporation to encourage investment and economic development within the state. The controversy stems, in part, from the fact that JobsOhio is funded by state liquor revenues. The state’s limited ability to audit JobsOhio also remains a point of contention. […]
Right, Left, and the Standing Issues in the Gay Marriage Cases
Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth […]
No Jurisdiction to Review Proposition 8
A divided Supreme Court concluded that it lacks jurisdiction to review the constitutional challenge to Proposition 8, and the line-up is an odd one. The Chief writes the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor. From the Chief Justice’s opinion: The public is […]
Standing Against E15
Among the petitions for certiorari listed for today’s Supreme Court conference are three (1, 2, 3) challenging a misguided standing ruling by the U.S. Court of Appeals for the D.C. Circuit. In Grocery Manufacturers Association v. EPA a divided panel of the D.C. Circuit held that a range of trade associations challenging the Environmental Protection […]
Right and Left Continue to Change Where they Stand on Standing
In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have […]
No Standing to Challenge FISA Surveillance
Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act. The Court split 5-4 along traditional right-left lines. Justice Alito wrote for the majority opinion. Justice Breyer dissented. Here is the introduction from […]
Perry and Windsor as Law School Exam Questions
In light of the Court’s decision to ask for jurisdictional arguments in both cases, Art Leonard considers some intriguing possibilities. They go well beyond a simple 5-4, up-or-down vote on the recognition of gay marriage.
Filibuster Suit Dismissed
By Jonathan H. Adler on December 22, 2012 1:23 pm in Administrative Law, Congress, Separation of Powers, Standing
Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, […]
Thoughts on the Oral Argument in Fisher v. University of Texas
By Ilya Somin on October 10, 2012 11:24 pm in Affirmative Action, Fisher v. University of Texas, Standing
Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote […]
En Banc Petitions in D.C. Circuit Greenhouse Gas Litigation
By Jonathan H. Adler on August 28, 2012 3:48 pm in Administrative Law, Climate Change, Environment, Standing
Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state […]
Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?
Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else’s property. According to the those cases, the key issue is whether the government violated the defendant’s own reasonable expectation of privacy under the framework […]
Cert. Petition in Right to Carry Case
By David Kopel on April 22, 2011 4:19 pm in Constitutional Law, Guns, McDonald v. City of Chicago, Standing, Supreme Court
Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, […]
Standing in Connecticut v. AEP
One of the issues in American Electric Power v. Connecticut is whether the state and environmentalist group plaintiffs can satisfy the requirements of Article III standing. One might have thought this issue was settled in Massachusetts v. EPA, at least with regard to the state litigants, but it was not. Although both cases concern injuries […]