Liberals' Stand on 'Standing' May Depend on Where They Sit
4:33 PM, Jul 11, 2014 • By ADAM J. WHITE
Speaker Boehner's proposed constitutional lawsuit against the president doesn't lack critics, including those who doubt that Congress has "standing" to bring such a case in federal court. And it's no surprise to find some conservatives among the critics: Conservative justices and judges were largely responsible for reinvigorating the doctrine of "standing" as a constitutional limit on judicial review of statutes and regulations.
But it is quite another thing to see liberals invoking rules of standing to bar courthouse doors, after spending decades complaining about the Rehnquist Court's invigoration of those very same rules, ever since the Supreme Court's rejection of environmentalists' standing in Lujan v. Defenders of Wildlife (1992). This has been a common tactic throughout the Obama administration's defense of regulatory programs, but perhaps the best example came today, from Harvard's Cass Sunstein.
"It is ironic," he writes, that Boehner’s lawsuit proposal "speaks of separation of powers, the oath of office and constitutional principles," because such a lawsuit would "defy" the Constitution by lacking the requisite standing. "If it is actually brought," he predicts, "the House’s lawsuit, purportedly designed to promote conformity to the Constitution, will almost certainly be promptly dismissed -- on constitutional grounds."
Well, yes, let's talk about irony. Long before President Obama appointed him to direct the White House's review of regulations, Sunstein was a vocal critic of the standing doctrine. Writing in 1988, he urged that new standing doctrines were not truly constitutional, and that the best understanding of the Constitution's requirements—namely, of Article III's provision that federal courts only hear actual "cases" or "controversies," not merely abstract arguments—is that Congress can vest litigants with standing by enacting statutes authorizing judicial review:
But perhaps Sunstein's most famous writing on standing came a few years later, when he argued that Congress had the power to give standing not just to people, but to animals:
So the Constitution allows Congress to give animals standing, but it denies Congress standing to bring lawsuits of its own? You do not need a law degree to recognize what's happening here.
It's particularly interesting to see Sunstein use the same basic rhetorical approach on both sides of the argument. Years ago, when liberal groups were the ones bringing lawsuits, Sunstein argued that judges "sincerely committed to the original understanding of the Constitution" must reject modern standing rules. But now, when House Republicans want to bring a lawsuit against President, "fidelity to the Constitution" would deny Congress standing to sue.
Yes, constitutional rules of standing exist for good reason; federal courts are forums for real cases and controversies, not mere political arguments. So it's not unfair to debate whether Congress would have standing to bring this lawsuit against the president. But let's have that debate with at least some measure of seriousness and sincerity.
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