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Liberals' Stand on 'Standing' May Depend on Where They Sit

4:33 PM, Jul 11, 2014 • By ADAM J. WHITE
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Nothing in the requirement of a “case or controversy” should be read to forbid Congress from treating animals as owners of legal rights. The “case or controversy” requires means that courts may not hear cases in which there is no cause of action, and it imposes other limitations on judicial power, including, under current doctrine, prohibitions on mootness, political questions, and merely ideological claims. To be sure, the framers anticipated that plaintiffs would ordinarily be human beings. But nothing in the Constitution limits Congress’ power to give standing to others. The conclusion is that if Congress wants to give animals standing to bring suit to protect their legal interests, it is permitted to do so.

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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